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User Agreement
Effective November 14, 2019
DownloadTable of Contents
PLEASE
READ THE TERMS OF
SERVICE CAREFULLY AS
THEY CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited ("Elance
Ltd."). You
must read, agree to, and
accept all of the terms and
conditions contained in this
Agreement to be a User of
our website located at
www.upwork.com or any part
of the rest of the Site
(defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement includes and hereby incorporates by reference the following important agreements, as they may be in effect and modified from time to time: Site Terms of
Use; Fee and
ACH Authorization
Agreement; Cookie Policy;
Privacy Policy; Mark Use
Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow instructions as applicable to any Service Contract you enter into with another User, specifically the
Hourly, Bonus,
and Expense Payment
Agreement with Escrow
Instructions; and Fixed-Price
Escrow Instructions.
This
Agreement also incorporates,
for any User using the
Upwork Direct Contract
Service, Upwork Direct
Contract Terms
and
Direct
Contract Escrow
Instructions.
These agreements are collectively, with this Agreement, called the “Terms of
Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT
BY USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16. Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account. Any user using the
Site, Site Services,
including Direct
Contract Services, for
the purpose of searching
for or using Freelancer
Services is a “Client” for purposes of
the Terms of Service.
1.4.2 FREELANCER, AGENCY, AND AGENCY MEMBER ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER CLASSIFICATION AND UPWORK PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site Services.
Upwork charges service fees
to Freelancers, as set forth
in the Fee and ACH
Authorization Agreement
and the Direct
Contract Terms, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site Services)
are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
there may also be a foreign
currency conversion charge;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
5.2 MEMBERSHIP FEES AND CONNECTS
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership to access
additional features and Site
Services and may purchase
"Connects". Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchasing "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under Fees
and Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee and ACH
Authorization Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement. Clients do not
pay fees if they use the
Site solely for Direct
Contracts.
5.5 VAT AND OTHER TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT
AGREEMENTS AND ESCROW
INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects.
If Users choose fixed-price
compensation, then the Users
agree that they will be
bound by, and Upwork Escrow
will follow, the Fixed-Price
Escrow Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Direct
Contracts. If Users enter
into a Direct Contract, then
the Users agree that they
will be bound by, and Upwork
Escrow will follow, the
Direct Contract Escrow
Instructions.
Upwork Payroll
Engagements. If Users use
Upwork Payroll (Section 4)
for their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client
Escrow Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c)
Fixed-Price Escrow
Account. When you enter
into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
(d) Direct
Contract Escrow Account.
When you enter into a
Direct Contract, Upwork
Escrow will establish
and maintain a “Direct Contract
Escrow Account” to receive,
hold, and release
payments pursuant to the
Direct Contract Escrow
Instructions for the
Project that is the
subject of that Direct
Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4
TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW
AGENT DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork or its
Affiliates, Upwork Escrow or
Elance Ltd., to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork or its
Affiliates, Upwork Escrow or
Elance Ltd., to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, we may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
At our discretion and
to the extent permitted by
applicable law, Upwork or
its Affiliates, Upwork
Escrow or Elance Ltd., may,
without notice, charge all
or a portion of the amount
that is owed to any Payment
Method on file on the
Client’s Account; set off
amounts due against other
amounts received from Client
or held by for Client by
Upwork, Upwork Escrow or
another Affiliate; make
appropriate reports to
credit reporting agencies
and law enforcement
authorities; and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF FUNDS
Client acknowledges
and agrees that Upwork or
its Affiliates, Upwork
Escrow or Elance Ltd., will
charge Client’s designated
Payment Method for the
Freelancer Fees incurred as
described in the applicable
Escrow Instructions and the
Fee and ACH Authorization
Agreement and that once
Upwork or its Affiliates,
Upwork Escrow or Elance
Ltd., charges or debits the
Client’s designated Payment
Method for the Freelancer
Fees, the charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
its Affiliates, Upwork
Escrow or Elance Ltd., may
dispute or appeal the
chargeback and institute
collection action against
Client and take such other
action it deems appropriate.
6.6 PAYMENT METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Ltd., as
applicable, to run credit
card authorizations on all
credit cards provided by
Client, to store credit card
and banking or other
financial details as
Client’s method of payment
consistent with our Privacy Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
Upwork or its Affiliates,
Upwork Escrow or Elance
Ltd., as applicable, does
not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow,
Elance Ltd., and our
Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, Elance Ltd., and our
Affiliates are not
responsible for currency
fluctuations that occur when
receiving or sending
payments to and from the
Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1 MAKING PAYMENTS THROUGH UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified
Claim” means
any and all claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1 TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 2625
Augustine Dr., Suite 601,
Santa Clara CA 95054 or by
email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
2625 Augustine Dr., Suite
601, Santa Clara CA 95054
that includes (a) your
Account username, (b) your
name, (c) your address, (d)
your telephone number, (e)
your email address, and (f)
a statement indicating that
you wish to opt out of the
Arbitration Provision.
Alternatively, you may send
this written notification to
legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2 MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to
act with respect to a breach
by you or others does not
waive our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3 ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Freelancer
Services”
means all services performed
for or delivered to Clients
by Freelancers.
“Hourly
Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing
Employee” means
a Freelancer enrolled in
Upwork Payroll, accepted for
employment by a Staffing
Provider, and assigned by
the Staffing Provider to
provide Freelancer Services
to one or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project;
(b) a Direct Contract as
defined in the Upwork Direct
Contract Terms; or (c) if
you use Upwork Payroll, the
contractual provisions
between Freelancer and the
Staffing Provider for the
provision of services to
Client, if any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective September 19, 2019 to November 14, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited ("Elance Ltd."). You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
there may also be a foreign
currency conversion charge;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
5.2 MEMBERSHIP
FEES AND CONNECTS
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership and may purchase
"Connects". Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchasing "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees and
Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork or its
Affiliates, Upwork Escrow or
Elance Ltd., to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork or its
Affiliates, Upwork Escrow or
Elance Ltd., to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, we may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
At our discretion and
to the extent permitted by
applicable law, Upwork or
its Affiliates, Upwork
Escrow or Elance Ltd.,
may, without notice, charge all or a portion of the amount that is owed to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Upwork, Upwork Escrow or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
may, without notice, charge all or a portion of the amount that is owed to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Upwork, Upwork Escrow or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork or
its Affiliates, Upwork
Escrow or Elance Ltd., will
charge Client’s designated
Payment Method for the
Freelancer Fees incurred as
described in the applicable
Escrow Instructions and the
Fee and ACH Authorization
Agreement and that once
Upwork or its Affiliates,
Upwork Escrow or Elance
Ltd., charges or debits the
Client’s designated Payment
Method for the Freelancer
Fees, the charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
its Affiliates, Upwork
Escrow or Elance Ltd., may
dispute or appeal the
chargeback and institute
collection action against
Client and take such other
action it deems appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Ltd., as
applicable, to run credit
card authorizations on all
credit cards provided by
Client, to store credit card
and banking or other
financial details as
Client’s method of payment
consistent with our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
Upwork or its Affiliates,
Upwork Escrow or Elance
Ltd., as applicable, does
not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow,
Elance Ltd., and our
Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, Elance Ltd., and our
Affiliates are not
responsible for currency
fluctuations that occur when
receiving or sending
payments to and from the
Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 2625 Augustine Dr.,
Suite 601,
Santa Clara CA
95054 or by email
to
legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
2625 Augustine Dr.,
Suite 601,
Santa Clara CA
95054 that
includes (a) your Account
username, (b) your name, (c)
your address, (d) your
telephone number, (e) your
email address, and (f) a
statement indicating that
you wish to opt out of the
Arbitration Provision.
Alternatively, you may send
this written notification to
legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective June 5, 2019 to September 19, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
there may also be a foreign
currency conversion charge;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
5.2 MEMBERSHIP
FEES AND CONNECTS
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership and may purchase
"Connects". Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchasing "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees and
Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
either Upwork, Upwork
Escrow, or our Affiliates
does not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow, and
our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 2625 Augustine Dr.,
Suite 601,
Santa Clara CA
95054 or by email
to
legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
2625 Augustine Dr.,
Suite 601,
Santa
Clara CA 95054 that
includes (a) your Account
username, (b) your name, (c)
your address, (d) your
telephone number, (e) your
email address, and (f) a
statement indicating that
you wish to opt out of the
Arbitration Provision.
Alternatively, you may send
this written notification to
legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective April 2, 2019 to June 5, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
there may also be a foreign
currency conversion charge;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
5.2 MEMBERSHIP
FEES AND CONNECTS
Freelancers
pay Upwork a membership fee
if they subscribe for a paid
membership and may purchase
"Connects". Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchasing "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees and
Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
either Upwork, Upwork
Escrow, or our Affiliates
does not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow, and
our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective April 2, 2019 to April 2, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
there may also be a foreign
currency conversion charge;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
5.2 MEMBERSHIP
FEES AND CONNECTS
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership and may purchase
"Connects". Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchase "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees and
Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
either Upwork, Upwork
Escrow, or our Affiliates
does not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow, and
our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective April 2, 2019 to April 2, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
there may also be a foreign
currency conversion charge;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
5.2 MEMBERSHIP
FEES AND CONNECTS
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership and may purchase
for "Connects". Freelancers
may subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchase "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees and
Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
either Upwork, Upwork
Escrow, or our Affiliates
does not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow, and
our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective April 2, 2019 to April 2, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.2 Membership Fees
and Connects
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business, which
includes, but is not limited
to, providing official
government or legal
documents.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (1) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(2) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (3) neither
Agencies nor Agency Members
are employees or agents of
Upwork; (4) Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Members;
(5) Upwork does not set
Agencies’ or Agency Members’
contract terms amongst
themselves or with Clients
(including determining
whether the contract will be
hourly or fixed price),
fees, pricing, work hours,
work schedules, or location
of work; (6) Upwork does not
provide Agencies or Agency
Members with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (7) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (8)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose,
provided, if applicable,
Users comply with the Opt
Out provisions described in
Section 7. Users are free at
all times to engage in such
other business activities
and services and are
encouraged to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contract, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, or (c)
constitute advertising or a
solicitation of any type.
Each situation is highly
fact-specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”)
will credit the Freelancer
Escrow Account for the full
amount paid or released, and
then subtract and disburse
to Upwork the Service Fee.
Freelancer hereby
irrevocably authorizes and
instructs Upwork Escrow to
deduct the Service Fee from
the Freelancer Escrow
Account and pay Upwork on
Freelancer’s behalf. In the
event the Freelancer chooses
to withdraw funds in a
currency other than U.S.
dollars, there may also be a
cost associated with the
foreign currency conversion;
the rate may differ from
rates that are in effect on
the date of the payment and
you may be able to obtain a
better rate from your bank
or financial institution.
.
.
5.2 MEMBERSHIP
FEES AND CONNECTS
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership and may purchase
for "Connects". Freelancers
may subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
and by purchase "Connects"
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees and
Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If a User's Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
or receive payments in U.S.
Dollars, the Site may
display foreign currency
conversion rates that
Upwork, Upwork Escrow, or
our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Each User, at its
sole discretion and risk,
may authorize the charge,
debit, or credit of its
Payment Method in a
supported foreign currency
and the conversion of the
payment to U.S. Dollars at
the foreign currency
conversion rate displayed on
the Site. A list of
supported foreign currencies
is available on the Site. If
foreign currency conversion
is required to make a
payment in U.S. Dollars and
either Upwork, Upwork
Escrow, or our Affiliates
does not support the foreign
currency or the User does
not authorize the conversion
of such payment at the
foreign currency conversion
rate displayed on the Site,
Upwork Escrow or one of our
Affiliates will charge,
debit, or credit the User's
Payment Method in U.S.
Dollars and the User's
Payment Method provider will
convert the payment at a
foreign currency conversion
rate selected by the User's
Payment Method provider. The
User's Payment Method
provider may also charge
fees directly to the Payment
Method even when no currency
conversion is involved. The
User's authorization of a
payment using a foreign
currency conversion rate
displayed on the Site is at
the User's sole risk.
Upwork, Upwork Escrow, and
our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective February 25, 2019 to April 2, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.2 Membership
Fees
5.4
Client Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (s) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(t) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (u) neither
Agencies nor Agency Members
are employees or agents of
Upwork, and Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Member or
services performed by the
Agency or Agency Member; (v)
Upwork does not, in any way,
supervise, direct, or
control the Agency or Agency
Members; (w) Upwork does not
set Agencies’ or Agency
Members’ contract terms
amongst themselves or with
Clients (including
determining whether the
contract will be hourly or
fixed price), fees, pricing,
work hours, work schedules,
or location of work; (x)
Upwork does not provide
Agencies or Agency Members
with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (y) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (z)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose. Users
are free at all times to
engage in such other
business activities and
services and are encouraged
to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contracts, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, (c) or
constitute advertising or a
solicitation of any type.
Each situation is highly
fact specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf.
5.2 MEMBERSHIP
FEES
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership. Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees
and Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 CLIENT FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement. Clients may also
choose to pay for a
premium membership plan,
as described in the
Fee
and ACH
Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If Client’s Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
payments in U.S. Dollars,
the Site may display foreign
currency conversion rates
that Upwork, Upwork Escrow,
or our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Client, at its
sole discretion and risk,
may authorize the charge or
debit of its Payment Method
in a supported foreign
currency and the conversion
of the payment to U.S.
Dollars at the foreign
currency conversion rate
displayed on the Site. A
list of supported foreign
currencies is available on
the Site. If foreign
currency conversion is
required to make a payment
in U.S. Dollars and either
Upwork, Upwork Escrow, or
our Affiliates does not
support the foreign currency
or Client does not authorize
the conversion of such
payment at the foreign
currency conversion rate
displayed on the Site,
Upwork Escrow or one of our
Affiliate will charge or
debit Client’s Payment
Method in U.S. Dollars and
Client’s Payment Method
provider will convert the
payment at a foreign
currency conversion rate
selected by Client’s Payment
Method provider. Client’s
Payment Method provider may
also charge fees directly to
the Payment Method even when
no currency conversion is
involved. Client’s
authorization of a payment
using a foreign currency
conversion rate displayed on
the Site is at Client’s sole
risk. Upwork, Upwork Escrow,
and our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments via wire
transfer, check or automated
clearinghouse to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective May 21, 2018 to February 25, 2019
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or
any part of the rest of the
Site (defined in the Site Terms of
Use) or the Site Services
(defined in the Site Terms of
Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.2 Membership
Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2. PURPOSE
OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (s) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(t) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (u) neither
Agencies nor Agency Members
are employees or agents of
Upwork, and Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Member or
services performed by the
Agency or Agency Member; (v)
Upwork does not, in any way,
supervise, direct, or
control the Agency or Agency
Members; (w) Upwork does not
set Agencies’ or Agency
Members’ contract terms
amongst themselves or with
Clients (including
determining whether the
contract will be hourly or
fixed price), fees, pricing,
work hours, work schedules,
or location of work; (x)
Upwork does not provide
Agencies or Agency Members
with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (y) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (z)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose. Users
are free at all times to
engage in such other
business activities and
services and are encouraged
to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN CLIENT
AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contracts, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, (c) or
constitute advertising or a
solicitation of any type.
Each situation is highly
fact specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4. WORKER
CLASSIFICATION AND UPWORK
PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf.
5.2 MEMBERSHIP
FEES
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership. Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees
and Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 PAYMENT
PROCESSING AND
ADMINISTRATION FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS AND
ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If Client’s Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
payments in U.S. Dollars,
the Site may display foreign
currency conversion rates
that Upwork, Upwork Escrow,
or our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Client, at its
sole discretion and risk,
may authorize the charge or
debit of its Payment Method
in a supported foreign
currency and the conversion
of the payment to U.S.
Dollars at the foreign
currency conversion rate
displayed on the Site. A
list of supported foreign
currencies is available on
the Site. If foreign
currency conversion is
required to make a payment
in U.S. Dollars and either
Upwork, Upwork Escrow, or
our Affiliates does not
support the foreign currency
or Client does not authorize
the conversion of such
payment at the foreign
currency conversion rate
displayed on the Site,
Upwork Escrow or one of our
Affiliate will charge or
debit Client’s Payment
Method in U.S. Dollars and
Client’s Payment Method
provider will convert the
payment at a foreign
currency conversion rate
selected by Client’s Payment
Method provider. Client’s
Payment Method provider may
also charge fees directly to
the Payment Method even when
no currency conversion is
involved. Client’s
authorization of a payment
using a foreign currency
conversion rate displayed on
the Site is at Client’s sole
risk. Upwork, Upwork Escrow,
and our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments via wire
transfer, check or automated
clearinghouse to and from
the Escrow Account.
7. NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12. INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT TERM AND
TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES BETWEEN
YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective May 21, 2018 to May 21, 2018
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or any part of the rest of
the
Site (defined
in the
Site Terms of Use
)
or
the
Site Services (defined in the Site
Terms of Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.2 Membership
Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK
ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2.
PURPOSE OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (s) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(t) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (u) neither
Agencies nor Agency Members
are employees or agents of
Upwork, and Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Member or
services performed by the
Agency or Agency Member; (v)
Upwork does not, in any way,
supervise, direct, or
control the Agency or Agency
Members; (w) Upwork does not
set Agencies’ or Agency
Members’ contract terms
amongst themselves or with
Clients (including
determining whether the
contract will be hourly or
fixed price), fees, pricing,
work hours, work schedules,
or location of work; (x)
Upwork does not provide
Agencies or Agency Members
with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (y) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (z)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose. Users
are free at all times to
engage in such other
business activities and
services and are encouraged
to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN
CLIENT AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contracts, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, (c) or
constitute advertising or a
solicitation of any type.
Each situation is highly
fact specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4.
WORKER CLASSIFICATION AND
UPWORK PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf.
5.2 MEMBERSHIP
FEES
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership. Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees
and Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 PAYMENT
PROCESSING AND
ADMINISTRATION FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS
AND ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If Client’s Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
payments in U.S. Dollars,
the Site may display foreign
currency conversion rates
that Upwork, Upwork Escrow,
or our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Client, at its
sole discretion and risk,
may authorize the charge or
debit of its Payment Method
in a supported foreign
currency and the conversion
of the payment to U.S.
Dollars at the foreign
currency conversion rate
displayed on the Site. A
list of supported foreign
currencies is available on
the Site. If foreign
currency conversion is
required to make a payment
in U.S. Dollars and either
Upwork, Upwork Escrow, or
our Affiliates does not
support the foreign currency
or Client does not authorize
the conversion of such
payment at the foreign
currency conversion rate
displayed on the Site,
Upwork Escrow or one of our
Affiliate will charge or
debit Client’s Payment
Method in U.S. Dollars and
Client’s Payment Method
provider will convert the
payment at a foreign
currency conversion rate
selected by Client’s Payment
Method provider. Client’s
Payment Method provider may
also charge fees directly to
the Payment Method even when
no currency conversion is
involved. Client’s
authorization of a payment
using a foreign currency
conversion rate displayed on
the Site is at Client’s sole
risk. Upwork, Upwork Escrow,
and our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments via wire
transfer, check or automated
clearinghouse to and from
the Escrow Account.
7.
NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY
DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12.
INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT
TERM AND TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES
BETWEEN YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective May 21, 2018 to May 21, 2018
DownloadSummary of changes
Fix links
Table of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or any part of the rest of
the
Site (defined
in the
Site Terms of Use
)
or
the
Site Services (defined in the Site
Terms of Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.2 Membership
Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK
ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2.
PURPOSE OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (s) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(t) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (u) neither
Agencies nor Agency Members
are employees or agents of
Upwork, and Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Member or
services performed by the
Agency or Agency Member; (v)
Upwork does not, in any way,
supervise, direct, or
control the Agency or Agency
Members; (w) Upwork does not
set Agencies’ or Agency
Members’ contract terms
amongst themselves or with
Clients (including
determining whether the
contract will be hourly or
fixed price), fees, pricing,
work hours, work schedules,
or location of work; (x)
Upwork does not provide
Agencies or Agency Members
with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (y) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (z)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose. Users
are free at all times to
engage in such other
business activities and
services and are encouraged
to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN
CLIENT AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contracts, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, (c) or
constitute advertising or a
solicitation of any type.
Each situation is highly
fact specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4.
WORKER CLASSIFICATION AND
UPWORK PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf.
5.2 MEMBERSHIP
FEES
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership. Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees
and Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 PAYMENT
PROCESSING AND
ADMINISTRATION FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS
AND ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If Client’s Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
payments in U.S. Dollars,
the Site may display foreign
currency conversion rates
that Upwork, Upwork Escrow,
or our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Client, at its
sole discretion and risk,
may authorize the charge or
debit of its Payment Method
in a supported foreign
currency and the conversion
of the payment to U.S.
Dollars at the foreign
currency conversion rate
displayed on the Site. A
list of supported foreign
currencies is available on
the Site. If foreign
currency conversion is
required to make a payment
in U.S. Dollars and either
Upwork, Upwork Escrow, or
our Affiliates does not
support the foreign currency
or Client does not authorize
the conversion of such
payment at the foreign
currency conversion rate
displayed on the Site,
Upwork Escrow or one of our
Affiliate will charge or
debit Client’s Payment
Method in U.S. Dollars and
Client’s Payment Method
provider will convert the
payment at a foreign
currency conversion rate
selected by Client’s Payment
Method provider. Client’s
Payment Method provider may
also charge fees directly to
the Payment Method even when
no currency conversion is
involved. Client’s
authorization of a payment
using a foreign currency
conversion rate displayed on
the Site is at Client’s sole
risk. Upwork, Upwork Escrow,
and our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments via wire
transfer, check or automated
clearinghouse to and from
the Escrow Account.
7.
NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY
DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12.
INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT
TERM AND TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES
BETWEEN YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective May 20, 2018 to May 21, 2018
DownloadTable of Contents
PLEASE READ
THE TERMS OF SERVICE
CAREFULLY AS THEY
CONTAIN IMPORTANT
INFORMATION REGARDING
YOUR LEGAL RIGHTS,
REMEDIES, AND
OBLIGATIONS. THESE
INCLUDE VARIOUS
LIMITATIONS AND
EXCLUSIONS AND A BINDING
ARBITRATION AGREEMENT
AND CLASS ACTION WAIVER.
This User Agreement
(this “Agreement”) is a contract
between you (“you” or “User”) Upwork Global Inc.
(“Upwork,” “we,” or “us”) and our affiliates
Upwork Escrow Inc. (“Upwork Escrow”) and, to the extent
expressly stated, Elance
Limited. You must read, agree
to, and accept all of the
terms and conditions
contained in this Agreement
to be a User of our website
located at www.upwork.com or any part of the rest of
the
Site (defined
in the
Site Terms of Use
)
or
the
Site Services (defined in the Site
Terms of Use).
This Agreement
includes and hereby
incorporates by reference
the following important
agreements, as they may be
in effect and modified from
time to time: Site
Terms of Use; Fee
and ACH Authorization
Agreement; Cookie
Policy; Privacy
Policy; Mark
Use Guidelines; Freelancer
Membership Agreement; Proprietary
Rights Infringement
Reporting Procedures; Upwork
App Software License
Agreement; API
Terms of Use; and the escrow
instructions as applicable
to any Service Contract you
enter into with another
User, specifically the
Hourly,
Bonus, and Expense
Payment Agreement with
Escrow Instructions; and Fixed-Price
Escrow Instructions. These agreements are
collectively, with this
Agreement, called the “Terms
of Service”.
Subject to the
conditions set forth herein,
Upwork may, in its sole
discretion, amend this
Agreement and the other
Terms of Service at any time
by posting a revised version
on the Site. Upwork will
provide reasonable advance
notice of any amendment that
includes a Substantial
Change (defined below), by
posting the updated Terms of
Service on the Site,
providing notice on the
Site, and/or sending you
notice by email. If the
Substantial Change includes
an increase to Fees charged
by Upwork, Upwork will
provide at least 30 days’
advance notice of the
change, but may not provide
any advance notice for
changes resulting in a
reduction in Fees or any
temporary or promotional Fee
change. Any revisions to the
Terms of Service will take
effect on the noted
effective date (each, as
applicable, the “Effective Date”).
YOU UNDERSTAND THAT BY
USING THE SITE OR SITE
SERVICES AFTER THE EFFECTIVE
DATE, YOU AGREE TO BE BOUND
BY THE TERMS OF SERVICE,
INCLUDING THE ARBITRATION
PROVISION IN SECTION 14 OF
THIS AGREEMENT (SUBJECT TO
YOUR RIGHT TO OPT OUT OF THE
ARBITRATION PROVISION AS
PROVIDED IN SECTION 14). IF
YOU DO NOT ACCEPT THE TERMS
OF SERVICE IN ITS ENTIRETY,
YOU MUST NOT ACCESS OR USE
THE SITE OR THE SITE
SERVICES AFTER THE EFFECTIVE
DATE EXCEPT AS PERMITTED BY
THE SITE TERMS OF USE.
IF YOU AGREE TO THE
TERMS OF SERVICE ON BEHALF
OF AN ENTITY OR AGENCY, OR
IN CONNECTION WITH PROVIDING
OR RECEIVING SERVICES ON
BEHALF OF AN ENTITY OR
AGENCY, YOU REPRESENT AND
WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT
ENTITY OR AGENCY TO THE
TERMS OF SERVICE AND AGREE
THAT YOU ARE BINDING BOTH
YOU AND THAT ENTITY OR
AGENCY TO THE TERMS OF
SERVICE. IN THAT EVENT,
“YOU” AND “YOUR” WILL REFER
AND APPLY TO YOU AND THAT
ENTITY OR AGENCY.
TABLE OF CONTENTS
1.3 Account
Profile
1.4 Account
Types
5. Upwork
Fees
5.2 Membership
Fees
6.1 Escrow
Services
6.4 Non-Payment
6.6 Payment
Methods
7.2 Opting
Out
11. Release
12. Indemnification
13.1 Termination
13.3 Survival
14.2 Choice
of Law
15. General
15.1 Entire
Agreement
15.3 Assignability
15.4 Severability
15.5 Force
Majeure
16.
Definitions
1. UPWORK
ACCOUNTS
Section 1 discusses
what you must agree to
before using the Site or
Site Services and the
different types of accounts
that can be created on the
Site, as detailed below.
1.1 REGISTRATION
AND ACCEPTANCE
By registering for an
account to use the Site or
Site Services (an “Account”),
by using the Site or Site
Services after the Effective
Date if you had an Account
on the Effective Date, or by
clicking to accept the Terms
of Service when prompted on
the Site, you agree to abide
by this Agreement and the
other Terms of Service.
To access and use
certain portions of the Site
and the Site Services, you
must register for an
Account. Subject to the Site
Terms of Use, certain
portions of the Site are
available to Site Visitors,
including those portions
before your Account
registration is accepted.
Upwork reserves the right to
decline a registration to
join Upwork or to add an
Account type as a Client or
Freelancer, for any lawful
reason, including supply and
demand, cost to maintain
data, or other business
considerations.
If you create an
Account as an employee or
agent on behalf of a
company, you represent and
warrant that you are
authorized to enter into
binding contracts, including
the Terms of Service, on
behalf of yourself and the
company.
1.2 ACCOUNT
ELIGIBILITY
Upwork offers the Site
and Site Services for your
business purposes only and
not for personal, household,
or consumer use. To register
for an Account or use the
Site and Site Services, you
must, and hereby represent
that you (a) have or are an
employee or agent of and
authorized to act for an
independent business
(whether it be as a
self-employed
individual/sole proprietor
or as a corporation, limited
liability company, or other
entity); (b) will use the
Site and Site Services for
business purposes only; (c)
will comply with any
licensing, registration, or
other requirements with
respect to your business, or
the business for which you
are acting, and the
provision of Freelance
Services; and (d) a legal
entity or an individual 18
years or older (or have
otherwise reached the age of
majority in the jurisdiction
in which you conduct
business) who can form
legally binding contracts.
1.3 ACCOUNT
PROFILE
To register for an
Account to join the Site,
you must complete a User
profile (“Profile”), which you consent
to be shown to other Users
and, unless you change your
privacy settings, the
public. You agree to provide
true, accurate, and complete
information on your Profile
and all registration and
other forms you access on
the Site or provide to us
and to update your
information to maintain its
truthfulness, accuracy, and
completeness. You agree not
to provide any false or
misleading information about
your identity or location,
your business, your skills,
or the services your
business provides and to
correct any such information
that is or becomes false or
misleading.
1.4 ACCOUNT TYPES
As described in this
Section, there are a number
of different Account types.
Once you register for one
Account type, you can add
the other Account types
under the same username and
password. For example, if
you already have a
Freelancer Account (defined
below), you can add a Client
Account as a separate
account type in settings
without re-registering. You
agree not to have or
register for more than one
Account without express
written permission from us.
We reserve the right to
revoke the privileges of the
Account or access to or use
of the Site or Site
Services, and those of any
and all linked Accounts
without warning if, in our
sole discretion, false or
misleading information has
been provided in creating,
marketing, or maintaining
your Profile or Account.
1.4.1 CLIENT ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a Client (a
“Client
Account”). Each User under a
Client Account (“Team Member”) can be given
different permissions to act
on behalf of the Client
Account.
1.4.2 FREELANCER,
AGENCY, AND AGENCY MEMBER
ACCOUNT
You can register for
an Account or add an Account
type to use the Site and
Site Services as a
Freelancer (a “Freelancer Account”). Another type of
Freelancer Account you can
add is an “Agency Account”, the owner of which
is referred to as an “Agency”. An Agency Account
allows permissions to be
granted to Users under the
Agency Account which can be
given different permissions
to act on behalf of the
Agency (each, an “Agency Member”) .
You acknowledge and
agree that the Agency is
solely responsible, and
assumes all liability, for
(a) the classification of
your Agency Members as
employees or independent
contractors; and (b) paying
your Agency Members in
accordance with applicable
law for work performed on
behalf of the Agency for
Projects. You further
acknowledge and agree that
(i) the Agency may determine
the Profile visibility and
pricing/rate information of
any of its Agency Members,
and (ii) Agency Members’
Profiles may display work
history that includes work
done under the Agency
Account, including after the
Agency Member is no longer
an Agency Member.
1.5 ACCOUNT
PERMISSIONS
You agree not to
request or allow another
person to create an Account
on your behalf, for your
use, or for your benefit,
except that an authorized
employee or agent may create
an Account on behalf of your
business. By granting other
Users permissions under your
Account, including as a Team
Member or Agency Member, you
represent and warrant that
(a) the User is authorized
to act on your behalf, (b)
you are financially
responsible for the User’s
actions taken in accordance
with those permissions,
including, if applicable,
entering into binding
contracts on behalf of the
owner of the Account, and
(c) you are fully
responsible and liable for
any action of any User to
whom you have provided any
permissions and any other
person who uses the Account,
including making payments
and entering into Service
Contracts and the Terms of
Service. If any such User
violates the Terms of
Service, it may affect your
ability to use the Site.
Upon closure of an Account,
Upwork may close any or all
related Accounts.
1.6
IDENTITY AND LOCATION
VERIFICATION
When you register for
an Account and from time to
time thereafter, your
Account will be subject to
verification, including, but
not limited to, validation
against third-party
databases or the
verification of one or more
official government or legal
documents that confirm your
identity, your location, and
your ability to act on
behalf of your business on
Upwork. You authorize
Upwork, directly or through
third parties, to make any
inquiries necessary to
validate your identity, your
location, and confirm your
ownership of your email
address or financial
accounts, subject to
applicable law. When
requested, you must timely
provide us with complete
information about yourself
and your business.
1.7 USERNAMES AND
PASSWORDS
When you register for
an Account, you will be
asked to choose a username
and password for the
Account. You are entirely
responsible for safeguarding
and maintaining the
confidentiality of your
username and password and
agree not to share your
username or password with
any person who is not
authorized to use your
Account. You authorize
Upwork to assume that any
person using the Site with
your username and password,
either is you or is
authorized to act for you.
You agree to notify us
immediately if you suspect
or become aware of any
unauthorized use of your
Account or any unauthorized
access to the password for
any Account. You further
agree not to use the Account
or log in with the username
and password of another User
of the Site if (a) you are
not authorized to use either
or (b) the use would violate
the Terms of Service.
2.
PURPOSE OF UPWORK
Section 2 discusses
what Upwork does and does
not do when providing the
Site and Site Services and
some of your
responsibilities when using
the Site to find or enter
into a Service Contract with
a Freelancer or Client, as
detailed below.
The Site is a
marketplace where Clients
and Freelancers can identify
each other and advertise,
buy, and sell Freelancer
Services online. Subject to
the Terms of Service, Upwork
provides the Site Services
to Users, including hosting
and maintaining the Site,
facilitating the formation
of Service Contracts, and
assisting Users in resolving
disputes which may arise in
connection with those
Service Contracts. When a
User enters a Service
Contract, the User uses the
Site to invoice and pay any
amounts owed under the
Service Contract.
2.1 RELATIONSHIP
WITH UPWORK
Upwork merely makes
the Site and Site Services
available to enable
Freelancers and Clients to
find and transact directly
with each other. Upwork does
not introduce Freelancers to
Clients, find Projects for
Freelancers, or find
Freelancers for Clients.
Through the Site and Site
Services, Freelancers may be
notified of Clients that may
be seeking the services they
offer, and Clients may be
notified of Freelancers that
may offer the services they
seek; at all times, however,
Users are responsible for
evaluating and determining
the suitability of any
Project, Client or
Freelancer on their own. If
Users decide to enter into a
Service Contract, the
Service Contract is directly
between the Users and Upwork
is not a party to that
Service Contract.
You acknowledge,
agree, and understand that
Upwork is not a party to the
relationship or any dealings
between Client and
Freelancer. Without
limitation, Users are solely
responsible for (a) ensuring
the accuracy and legality of
any User Content, (b)
determining the suitability
of other Users for a Service
Contract (such as any
interviews, vetting,
background checks, or
similar actions), (c)
negotiating, agreeing to,
and executing any terms or
conditions of Service
Contracts, (d) performing
Freelancer Services, or (e)
paying for Service Contracts
or Freelancer Services. You
further acknowledge, agree,
and understand that you are
solely responsible for
assessing whether to enter
into a Service Contract with
another User and for
verifying any information
about another User,
including Composite
Information (defined below).
Upwork does not make any
representations about or
guarantee the truth or
accuracy of any Freelancer’s
or Client’s listings or
other User Content on the
Site; does not verify any
feedback or information
provided by Users about
Freelancers or Clients; and
does not vet or otherwise
perform background checks on
Freelancers or Clients. You
acknowledge, agree, and
understand that Upwork does
not, in any way, supervise,
direct, control, or evaluate
Freelancers or their work
and is not responsible for
any Project, Project terms
or Work Product. Upwork
makes no representations
about and does not
guarantee, and you agree not
to hold Upwork responsible
for, the quality, safety, or
legality of Freelancer
Services; the
qualifications, background,
or identities of Users; the
ability of Freelancers to
deliver Freelancer Services;
the ability of Clients to
pay for Freelancer Services;
User Content, statements or
posts made by Users; or the
ability or willingness of a
Client or Freelancer to
actually complete a
transaction.
You also acknowledge,
agree, and understand that
Freelancers are solely
responsible for determining,
and have the sole right to
determine, which Projects to
accept; the time, place,
manner, and means of
providing any Freelancer
Services; the type of
services they provide; and
the price they charge for
their services or how that
pricing is determined or
set. You further
acknowledge, agree, and
understand that: (i) you are
not an employee of Upwork,
and you are not eligible for
any of the rights or
benefits of employment
(including unemployment
and/or workers compensation
insurance); (ii) Upwork will
not have any liability or
obligations under or related
to Service Contracts and/or
Freelancer Services for any
acts or omissions by you or
other Users; (iii) Upwork
does not, in any way,
supervise, direct, or
control any Freelancer or
Freelancer Services; does
not impose quality standards
or a deadline for completion
of any Freelancer Services;
and does not dictate the
performance, methods or
process Freelancer uses to
perform services; (iv)
Freelancer is free to
determine when and if to
perform Freelancer Services,
including the days worked
and time periods of work,
and Upwork does not set or
have any control over
Freelancer’s pricing, work
hours, work schedules, or
work location, nor is Upwork
involved in any other way in
determining the nature and
amount of any compensation
that may be charged by or
paid to Freelancer for a
Project; (v) Freelancer will
be paid at such times and
amounts as agreed with a
Client in a given Service
Contract, and Upwork does
not, in any way, provide or
guarantee Freelancer a
regular salary or any
minimum, regular payment;
(vi) Upwork does not provide
Freelancers with training or
any equipment, labor, tools,
or materials related to any
Service Contract; and (vii)
Upwork does not provide the
premises at which
Freelancers will perform the
work. Freelancers are free
to use subcontractors or
employees to perform
Freelancer Services and may
delegate work on fixed-price
contracts or by agreeing
with their Clients to have
hourly contracts for
Freelancer’s
subcontractor(s) or
employee(s). If a Freelancer
uses subcontractors or
employees, Freelancer
further agrees and
acknowledges that this
paragraph applies to
Upwork’s relationship, if
any, with Freelancer’s
subcontractors and employees
as well and Freelancer is
solely responsible for
Freelancer’s subcontractors
and employees.
Without limiting the
foregoing paragraph, if you
are an Agency or Agency
Member, you expressly
acknowledge, agree, and
understand that: (s) the
Agency is solely responsible
for paying its Agency
Members for work performed
on behalf of the Agency and
that such payments will not
be made through the Site;
(t) Upwork is not a party to
any agreement between the
Agency and its Agency
Members and does not have
any liability or obligations
under or related to any such
agreement, even if the
Agency or Agency Member
defaults; (u) neither
Agencies nor Agency Members
are employees or agents of
Upwork, and Upwork does not,
in any way, supervise,
direct, or control the
Agency or Agency Member or
services performed by the
Agency or Agency Member; (v)
Upwork does not, in any way,
supervise, direct, or
control the Agency or Agency
Members; (w) Upwork does not
set Agencies’ or Agency
Members’ contract terms
amongst themselves or with
Clients (including
determining whether the
contract will be hourly or
fixed price), fees, pricing,
work hours, work schedules,
or location of work; (x)
Upwork does not provide
Agencies or Agency Members
with training or any
equipment, labor, tools, or
materials needed for any
Service Contract; (y) Upwork
does not provide the
premises at which the Agency
or Agency Members will
perform the work; and (z)
Upwork makes no
representations as to the
reliability, capability, or
qualifications of any Agency
or Agency Member or the
ability or willingness of
any Agency to make payments
to or fulfill any other
obligations to Agency
Members, and Upwork
disclaims any and all
liability relating thereto.
Nothing in this
Agreement is intended to
prohibit or discourage (nor
should be construed as
prohibiting or discouraging)
any User from engaging in
any other business
activities or providing any
services through any other
channels they choose. Users
are free at all times to
engage in such other
business activities and
services and are encouraged
to do so.
2.2 TAXES AND
BENEFITS
Freelancer
acknowledges and agrees that
Freelancer is solely
responsible (a) for all tax
liability associated with
payments received from
Freelancer’s Clients and
through Upwork, and that
Upwork will not withhold any
taxes from payments to
Freelancer; (b) to obtain
any liability, health,
workers’ compensation,
disability, unemployment, or
other insurance needed,
desired, or required by law,
and that Freelancer is not
covered by or eligible for
any insurance from Upwork;
(c) for determining whether
Freelancer is required by
applicable law to issue any
particular invoices for the
Freelancer Fees and for
issuing any invoices so
required; (d) for
determining whether
Freelancer is required by
applicable law to remit to
the appropriate authorities
any value added tax or any
other taxes or similar
charges applicable to the
Freelancer Fees and
remitting any such taxes or
charges to the appropriate
authorities, as appropriate;
and (e) if outside of the
United States, for
determining if Upwork is
required by applicable law
to withhold any amount of
the Freelancer Fees and for
notifying Upwork of any such
requirement and indemnifying
Upwork for any requirement
to pay any withholding
amount to the appropriate
authorities (including
penalties and interest). In
the event of an audit of
Upwork, Freelancer agrees to
promptly cooperate with
Upwork and provide copies of
Freelancer’s tax returns and
other documents as may be
reasonably requested for
purposes of such audit,
including but not limited to
records showing Freelancer
is engaging in an
independent business as
represented to Upwork.
2.3 MARKETPLACE
FEEDBACK AND USER
CONTENT
You hereby acknowledge
and agree that Users publish
and request Upwork to
publish on their behalf
information on the Site
about the User, such as
feedback, composite
feedback, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on unverified
data that Freelancers or
Clients voluntarily submit
to Upwork and does not
constitute and will not be
construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
You acknowledge and
agree that User feedback
benefits the marketplace,
all Users, and the
efficiency of the Site and
you specifically request
that Upwork post composite
or compiled feedback about
Users, including yourself,
on User Profiles and
elsewhere on the Site. You
acknowledge and agree that
feedback results for you,
including your Job Success
Score, wherever referenced,
and other User Content
highlighted by Upwork on the
Site or otherwise (“Composite Information”), if any, will
include User comments, User
ratings, indicators of User
satisfaction, and other
feedback left exclusively by
other Users. You further
acknowledge and agree that
Upwork will make Composite
Information available to
other Users, including
composite or compiled
feedback. Upwork provides
its feedback system as a
means through which Users
can share their opinions of
other Users publicly, and
Upwork does not monitor,
influence, contribute to or
censor these opinions. You
acknowledge and agree that
posted composite or compiled
feedback and any other
Composite Information
relates only to the business
advertised in the Profile
and not to any individual
person. You agree not to use
the Composite Information to
make any employment, credit,
credit valuation,
underwriting, or other
similar decision about any
other User.
Upwork does not
generally investigate any
remarks posted by Users or
other User Content for
accuracy or reliability and
does not guarantee that User
Content is accurate. You are
solely responsible for your
User Content, including the
accuracy of any User
Content, and are solely
responsible for any legal
action that may be
instituted by other Users or
third parties as a result of
or in connection with your
User Content if such User
Content is legally
actionable or defamatory.
Upwork is not legally
responsible for any feedback
or comments posted or made
available on the Site by any
Users or third parties, even
if that information is
defamatory or otherwise
legally actionable. In order
to protect the integrity of
the feedback system and
protect Users from abuse,
Upwork reserves the right
(but is under no obligation)
to remove posted feedback or
information that, in
Upwork’s sole judgment,
violates the Terms of
Service or negatively
affects our marketplace,
diminishes the integrity of
the feedback system or
otherwise is inconsistent
with the business interests
of Upwork. You acknowledge
and agree that you will
notify Upwork of any error
or inaccurate statement in
your feedback results,
including the Composite
Information, and that if you
do not do so, Upwork may
rely on the accuracy of such
information.
3. CONTRACTUAL
RELATIONSHIP BETWEEN
CLIENT AND FREELANCER
Section 3 discusses
the relationship you may
decide to enter into with
another User, including
Service Contracts between
Users, as detailed below.
3.1 SERVICE
CONTRACTS
If a Client and
Freelancer decide to enter
into a Service Contract, the
Service Contract is a
contractual relationship
directly between the Client
and Freelancer. Client and
Freelancer have complete
discretion both with regard
to whether to enter into a
Service Contract with each
other and with regard to the
terms of any Service
Contract. You acknowledge,
agree, and understand that
Upwork is not a party to any
Service Contracts, that the
formation of a Service
Contract between Users will
not, under any circumstance,
create an employment or
other service relationship
between Upwork and any
Freelancer or a partnership
or joint venture between
Upwork and any User.
With respect to any
Service Contract, Clients
and Freelancers may enter
into any written agreements
that they deem appropriate
(e.g., confidentiality
agreements, invention
assignment agreements,
assignment of rights, etc.)
provided that any such
agreements do not conflict
with, narrow, or expand
Upwork’s rights and
obligations under the Terms
of Service, including this
Agreement and the applicable
Escrow Instructions. The
parties to a Service
Contract can, if the parties
prefer, agree to the Optional
Service Contract Terms in whole or in part,
in addition to or instead of
other such agreements.
The Optional Service
Contract Terms are provided
as a sample only and may not
be appropriate for all
jurisdictions or all
contracts. Users are
responsible for complying
with any local requirements.
Upwork does not assume any
responsibility for any
consequence of using the
Optional Service Contract
Terms. The Optional Service
Contract Terms are not
intended to and do not (a)
constitute legal advice, (b)
create an attorney-client
relationship, (c) or
constitute advertising or a
solicitation of any type.
Each situation is highly
fact specific and
requirements vary by
situation and jurisdiction
and therefore any party
should seek legal advice
from a licensed attorney in
the relevant jurisdictions.
Upwork expressly disclaims
any and all liability with
respect to actions or
omissions based on the
Optional Service Contract
Terms.
3.2 DISPUTES
AMONG USERS
For disputes arising
between Clients and
Freelancers, you agree to
abide by the dispute process
that is explained in the
Escrow Instructions that
apply to your particular
Service Contract. If the
dispute process does not
resolve your dispute, you
may pursue your dispute
independently, but you
acknowledge and agree that
Upwork will not and is not
obligated to provide any
dispute assistance beyond
what is provided in the
Escrow Instructions.
If Freelancer or
Client intends to obtain an
order from any arbitrator or
any court that might direct
Upwork, Upwork Escrow, or
our Affiliates to take or
refrain from taking any
action with respect to an
Escrow Account, that party
will (a) give us at least
five business days’ prior
notice of the hearing; (b)
include in any such order a
provision that, as a
precondition to obligation
affecting Upwork or Upwork
Escrow, we be paid in full
for any amounts to which we
would otherwise be entitled;
and (c) be paid for the
reasonable value of the
services to be rendered
pursuant to such order.
3.3
CONFIDENTIAL INFORMATION
Users may agree to any
terms they deem appropriate
with respect to
confidentiality, including
those set forth in the
Optional Service Contract
Terms. If and to the extent
that the Users do not
articulate any different
agreement, then they agree
that this Section 3.3
(Confidentiality) applies.
To the extent a User
provides Confidential
Information to the other,
the recipient will protect
the secrecy of the
discloser’s Confidential
Information with the same
degree of care as it uses to
protect its own Confidential
Information, but in no event
with less than due care. On
a User’s written request,
the party that received
Confidential Information
will promptly destroy or
return the disclosing
party’s Confidential
Information and any copies
thereof contained in or on
its premises, systems, or
any other equipment
otherwise under its control.
3.4 THIRD-PARTY
BENEFICIARIES
It is the intent of
the Parties to this
Agreement that Users who
have entered into Service
Contracts or disclosed or
received Confidential
Information to another User
are third-party
beneficiaries of this
Agreement with respect to
this Section 3 only.
4.
WORKER CLASSIFICATION AND
UPWORK PAYROLL
Section 4 discusses
what you agree to concerning
whether a Freelancer is an
employee or independent
contractor and when you
agree to use Upwork Payroll,
as detailed below.
4.1 WORKER
CLASSIFICATION
Nothing in this
Agreement is intended to or
should be construed to
create a partnership, joint
venture,
franchisor/franchisee or
employer-employee
relationship between Upwork
and a User.
Client is solely
responsible for and has
complete discretion with
regard to selection of any
Freelancer for any Project.
Client is solely
responsible, warrants its
decisions regarding
classification are correct,
and assumes all liability,
for determining whether
Freelancers should be
engaged as independent
contractors or employees of
Client and engaging them
accordingly; Upwork will
have no input into, or
involvement in, worker
classification as between
Client and Freelancer and
Users agree that Upwork has
no involvement in and will
have no liability arising
from or relating to the
classification of a
Freelancer generally or with
regard to a particular
Project.
4.2 UPWORK
PAYROLL SERVICES
Client agrees to
enroll in Upwork Payroll if
it will receive services
from a Freelancer under
terms and conditions that
would give rise to an
employment relationship
(unless Client elects
instead to pay the Opt-Out
Fee (see Section 7)). In
this case, Client will
engage Upwork’s third-party
staffing vendor (the “Staffing Provider”), which is an Agency
on Upwork, through the Site.
The Staffing Provider will
hire Freelancer at the
request of Client and
Freelancer according to the
terms described on the site
and otherwise agreed to by
the Staffing Provider and
Client and/or Freelancer,
and subject to the Upwork
Payroll Agreement. For all
purposes with Upwork
Payroll, the employer of
Freelancer will be the
Staffing Provider and not
Upwork under any
circumstances.
Freelancer,
acknowledges, understands,
and agrees that Upwork will
have no control over, or
involvement in determining
or influencing, the terms
and conditions of any
employment relationship that
may arise between Freelancer
and Staffing Provider and/or
Client, including the
selection of an employee,
pay rate, work hours,
employment dates and working
conditions. Freelancer will
not have any contract on the
Upwork Site or contact with
Upwork regarding such
employment terms. Where
Freelancer and Client have
enrolled in Upwork Payroll
the Site is provided for,
and Users agree to use the
Site for, the sole purpose
of enabling Freelancer to
communicate with the
Staffing Provider and the
Client.
5. UPWORK FEES
Section 5 describes
what fees you agree to pay
to Upwork in exchange for
Upwork providing the Site
and Site Services to you and
what taxes Upwork may
collect, as detailed below.
5.1 SERVICE FEES
FOR FREELANCERS
Freelancers pay Upwork
a Service Fee (as defined in
this Section 5.1) for the
use of the Site. Upwork
charges service fees to
Freelancers, as set forth in
the Fee and ACH
Authorization Agreement, for using the Site’s
communication, invoicing,
reporting, dispute
resolution and payment
services, including
facilitating arbitration
services and Hourly Payment
Protection, as described in
the applicable Escrow
Instructions (the “Service Fees”). The Service Fees
(to use the Site and Site
Services) are paid solely by
Freelancer. When a Client
pays a Freelancer for a
Project or when funds
related to a Project are
otherwise released to a
Freelancer as required by
the applicable Escrow
Instructions (See Section
6.1), Upwork Escrow Inc. (“Upwork Escrow”) will credit the
Freelancer Escrow Account
for the full amount paid or
released, and then subtract
and disburse to Upwork the
Service Fee. Freelancer
hereby irrevocably
authorizes and instructs
Upwork Escrow to deduct the
Service Fee from the
Freelancer Escrow Account
and pay Upwork on
Freelancer’s behalf.
5.2 MEMBERSHIP
FEES
Freelancers pay Upwork
a membership fee if they
subscribe for a paid
membership. Freelancers may
subscribe to different
levels of participation and
privileges on the Site, by
payment of subscription fees
as described in and subject
to the terms of the Freelancer
Membership Agreement.
5.3 DISBURSEMENT
FEES
Freelancers may pay
Upwork a disbursement fee
for remitting payments to
their preferred payment
method (“Disbursement Fee”). The Disbursement
Fee is paid to Upwork in
consideration of costs
incurred and administration
of disbursements via the
disbursement method
requested by Freelancer and
varies by disbursement
method. The Disbursement Fee
for each disbursement method
is listed at under
Fees
and Schedules on the Site as
revised from time to time.
Additional activation,
maintenance, and account
fees may be charged by the
disbursement method
requested by Freelancer.
5.4 PAYMENT
PROCESSING AND
ADMINISTRATION FEES
Clients pay Upwork a
fee for payment processing
and administration related
to the Freelancer Fees they
pay to Freelancers they
engage through the Site, as
described in the Fee
and ACH Authorization
Agreement.
5.5 VAT AND OTHER
TAXES
Upwork may be required
by applicable law to collect
taxes or levies including,
without limitation,
withholding income tax or
VAT (while some countries
may refer to VAT using other
terms, e.g. GST, we’ll just
refer to VAT, GST and any
local sales taxes
collectively as “VAT”) in the jurisdiction
of the Freelancer (the "Taxes"). In such instances,
any amounts Upwork is
required to collect or
withhold for the payment of
any such Taxes shall be
collected in addition to the
fees owed to Upwork under
the Terms of Service.
5.6
NO FEE FOR INTRODUCING OR
FOR FINDING PROJECTS
Upwork does not
introduce Clients to
Freelancers and does not
help Freelancers secure
Projects. Upwork merely
makes the Site and Site
Services available to enable
Freelancers to do so
themselves and may from time
to time highlight Projects
that may be of interest.
Therefore, Upwork does not
charge a fee when a
Freelancer finds a suitable
Client or finds a Project.
In addition, Upwork does not
charge any fee or dues for
posting public feedback and
composite or compiled
feedback, including
Composite Information.
6. PAYMENT TERMS
AND ESCROW SERVICES
Section 6 discusses
your agreement to pay
Freelancer Service Fees on
Service Contracts, and
describes how Upwork’s
Escrow Services work, what
happens if a Client doesn’t
pay, and related topics, as
detailed below.
6.1 ESCROW
SERVICES
Upwork Escrow provides
escrow services to Users to
deliver, hold, and/or
receive payment for a
Project, and to pay fees to
Upwork (“Escrow Services”). Upwork Escrow is a
Delaware corporation and a
licensed Internet escrow
agent that holds California
Department of Business
Oversight License No. 963
5086. The Escrow Services
are intended for business
use, and you agree to use
the Escrow Services only for
business purposes and not
for consumer, personal,
family, or household
purposes.
6.1.1 PAYMENT AGREEMENTS AND
ESCROW INSTRUCTIONS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions. You
acknowledge and agree that
Upwork Escrow acts merely as
an Internet escrow agent.
Upwork Escrow has fully
delivered the Escrow
Services to you if Upwork
Escrow provides the Escrow
Services described in this
Agreement and the applicable
Escrow Instructions. Upwork
Escrow is only obligated to
perform those duties
expressly described in this
Agreement and any applicable
Escrow Instructions. If you
authorize or instruct Upwork
Escrow to release or make a
payment of funds from an
Escrow Account associated
with you, Upwork Escrow may
release or pay those funds
as instructed in reliance on
your authorization, this
Agreement, and the
applicable Escrow
Instructions. In addition,
Upwork Escrow may release or
pay funds from an Escrow
Account as required by
applicable law.
Fixed-Price Projects. If Users choose
fixed-price compensation,
then the Users agree that
they will be bound by, and
Upwork Escrow will follow,
the Fixed-Price Escrow
Instructions.
Hourly Projects, Bonus
Payments, or Expense
Payments. If Users choose
hourly compensation, and/or
if the Client makes bonus or
expense payments, then the
Users agree that they will
be bound by, and Upwork
Escrow will follow, the
Hourly, Bonus and Expense
Payment Agreement with
Escrow Instructions.
Upwork Payroll
Engagements. If Users use Upwork
Payroll (Section 4) for
their Project, then the
Staffing Employee is paid
directly by the Staffing
Provider. A Client will be
invoiced through the Site by
the Staffing Provider, and
the applicable Escrow
Instructions will apply.
However, the Client will not
be able to dispute hours
reported by the Staffing
Employee and there is no
waiting period for the
disbursement of funds to the
Staffing Employee.
6.1.2 ESCROW ACCOUNTS
Upwork Escrow will use
and release funds deposited
in an Escrow Account only in
accordance with this
Agreement and the applicable
Escrow Instructions.
Depending on your needs and
the applicable Escrow
Instructions, Upwork Escrow
will establish and maintain
one of three different types
of Escrow Accounts, subject
to the applicable Escrow
Instructions:
(a) Client Escrow
Account. After
entering into a Service
Contract, the first time
a Client makes a payment
for a Project, Upwork
Escrow will establish
and maintain a “Client Escrow
Account” to hold
funds for the Client to
use to make payments for
Projects, to receive
refunds in connection
with Projects, and to
make payments to Upwork
for payment processing
and administration fees.
(b) Freelancer
Escrow Account. After
entering into a Service
Contract, the first time
a Freelancer uses the
Site to receive payment
for a Project, Upwork
Escrow will establish
and maintain a “Freelancer
Escrow Account” for
Freelancer to receive
payments for Projects,
withdraw payments, make
payments for Service
Fees and to Upwork for
other fees, and issue
refunds to Clients.
(c) Fixed-Price
Escrow Account. When you
enter into a Fixed-Price
Contract, Upwork Escrow
will establish and
maintain a “Fixed-Price
Escrow Account” to receive,
hold, and release
payments pursuant to the
Fixed-Price Escrow
Instructions for the
Project that is the
subject of that
Fixed-Price Contract.
You hereby authorize
and instruct Upwork Escrow
to act as escrow agent in
connection with the Escrow
Accounts and the payment,
holding, and receipt of
funds for each Project and
other specified purposes in
accordance with the Terms of
Service and the applicable
Escrow Instructions. Client
and Freelancer may access
current information
regarding the status of an
Escrow Account on the Site.
6.1.3 FREELANCER
APPOINTMENT OF UPWORK ESCROW
AND SUBSIDIARIES AS AGENT
If you are a
Freelancer and you request
payment related to an Hourly
Contract or the release of
funds from a Fixed-Price
Escrow Account, you hereby
appoint Upwork Escrow and
its wholly-owned
subsidiaries, as your agent
to obtain funds on your
behalf and credit them to
your Freelancer Escrow
Account as applicable.
Because Upwork Escrow is
Freelancer’s agent,
Freelancer must, and hereby
does, fully discharge and
credit Freelancer’s Client
for all payments and
releases that Upwork Escrow
receives on Freelancer’s
behalf from or on behalf of
such Client.
6.1.4 TITLE TO FUNDS
Upwork, Upwork Escrow
and our Affiliates are not
banks. Upwork Escrow
deposits and maintains all
Escrow Account funds in an
escrow trust account at a
bank insured by the Federal
Deposit Insurance
Corporation and approved to
receive, hold, and deliver
escrow funds under
applicable laws and
regulations. The escrow
trust account is separate
from the operating accounts
of Upwork and each of our
Affiliates. Upwork Escrow
will not voluntarily make
funds deposited in the
escrow trust account
available to its creditors,
or the creditors of its
Affiliates, in the event of
a bankruptcy, or for any
other purpose. As provided
in United States Bankruptcy
Code, § 541(d), Upwork
Escrow holds only legal
title to, and not any
equitable interest in, the
escrow trust account and any
funds deposited therein.
This Agreement is
supplementary to the Service
Contract and to any other
agreement between Client and
Freelancer concerning the
Project, as provided in 11
United States Bankruptcy
Code, § 365(n).
6.1.5 NO INTEREST
You agree that you
will not receive interest or
other earnings on the funds
held in your Escrow Account.
Upwork, Upwork Escrow, or
our Affiliates may charge or
deduct fees, may receive a
reduction in fees or
expenses charged, and may
receive other compensation
in connection with the
services they provide.
6.1.6 ESCROW AGENT
DUTIES
We undertake to
perform only such duties as
are expressly set forth in
this Agreement, the
applicable Escrow
Instructions, and the other
Terms of Service, and no
other duties will be
implied. We have no
liability under, and no duty
to inquire as to, the
provisions of any agreement,
other than the Terms of
Service, including this
Agreement and the applicable
Escrow Instructions. We will
be under no duty to inquire
about or investigate any
agreement or communication
between Client and
Freelancer, even if posted
to the Site. We have the
right to rely upon, and will
not be liable for acting or
refraining from acting upon,
any written notice,
instruction, or request
furnished to us by Client or
Freelancer in accordance
with this Agreement or the
applicable Escrow
Instructions, if we
reasonably believe that such
notice, instruction, or
request is genuine and that
it is signed or presented by
the proper party or parties.
We have no duty to inquire
about or investigate the
validity, accuracy, or
content of any such notice,
instruction, or request. We
have no duty to solicit any
payments or releases that
may be due to or from any
Escrow Account. We may
execute any of our powers
and perform any of our
duties under this Agreement
and the applicable Escrow
Instructions directly or
through agents or attorneys
(and will be liable only for
the careful selection of any
such agent or attorney) and
may consult with counsel,
accountants, and other
skilled persons to be
selected and retained by us.
To the extent permitted by
applicable law, we will not
be liable for anything done,
suffered, or omitted in good
faith by us in accordance
with the advice or opinion
of any such counsel,
accountants, or other
skilled persons. If we are
uncertain as to our duties
or rights hereunder or
receive instructions,
claims, or demands from any
party hereto that, in our
opinion, conflict with any
of the provisions of this
Agreement or the applicable
Escrow Instructions, we will
be entitled to refrain from
taking any action, and our
sole obligation will be to
keep safely all property
held in the Escrow Account
until we are directed
otherwise in writing by
Client and Freelancer or by
a final order or judgment of
an arbitrator or court of
competent jurisdiction.
6.1.7 ESCROW AGENT
RIGHT
We have the right, in
our sole discretion, but not
the obligation, to institute
arbitration or, if no
arbitration provision
applies, other legal
proceedings, including
depositing funds held in the
Escrow Account with a court
of competent jurisdiction,
and to resolve any dispute
between Client and
Freelancer related to the
Escrow Account. Any
provision of this Agreement
and the applicable Escrow
Instructions to the contrary
notwithstanding and
regardless whether we are
identified as a party in
interest in any dispute,
arbitration, or other legal
proceeding, nothing herein
will be construed to limit
our legal and equitable
rights, including, but not
limited to, depositing funds
held in the Escrow Account
with a court of competent
jurisdiction. Any
corporation or association
into which Upwork Escrow may
be merged or converted or
with which Upwork Escrow may
be consolidated, or any
corporation or association
to which all or
substantially all the escrow
business of Upwork Escrow
may be transferred will
succeed to all the rights
and obligations of Upwork
Escrow as escrow holder and
escrow agent under this
Agreement and the applicable
Escrow Instructions without
further act to the extent
permitted by applicable law.
6.2 CLIENT
PAYMENTS ON SERVICE
CONTRACTS
For Hourly Contracts,
Freelancer will invoice
Client on a weekly basis
through Upwork, and Client
will pay invoices consistent
with the Hourly Escrow
Instructions. For
Fixed-Price Contracts,
Client becomes obligated to
fund escrow immediately upon
sending a Fixed-Price
Contract offer (for the full
amount or for the first
milestone, if milestones are
used) or upon activating any
additional milestone.
Client acknowledges
and agrees that for both
Hourly Contracts and
Fixed-Price Contracts
failure to decline or
dispute an Hourly Invoice or
request for payment is an
authorization and
instruction to release
payment, as described more
fully in the applicable
Escrow Instructions. When
Client authorizes the
payment of the Freelancer
Fees for a Fixed-Price
Contract on the Site, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees. When
Client approves an Hourly
Invoice for an Hourly
Contract, Client
automatically and
irrevocably authorizes and
instructs Upwork Escrow or
Elance Limited to charge
Client’s Payment Method for
the Freelancer Fees.
6.3 DISBURSEMENTS
TO FREELANCERS
Under the relevant
Escrow Instructions, Upwork
Escrow disburses funds that
are available and payable to
a Freelancer upon
Freelancer’s request. A
Freelancer can request
disbursement of available
funds any time on a one-time
basis or by setting up an
automatic disbursement
schedule. If Freelancer does
not request a disbursement,
Upwork will automatically
disburse available funds no
more than 90 days after the
Freelancer Fees are released
to the Freelancer Escrow
Account, unless the amount
in the Escrow Account is
less than the Minimum
Threshold. For purposes of
the Terms of Service, a “Minimum Threshold” is either (a) $100
for Freelancers within the
United States, or (b) $1,000
for Freelancers outside the
United States. When the
funds in the Freelancer
Escrow Account are below the
Minimum Threshold, the
automatic disbursement
schedule is paused and the
available and payable funds
are released on the earlier
of (i) Freelancer’s request,
or (ii) on the first
scheduled automatic
disbursement occurring after
the amount exceeds the
Minimum Threshold or 180
days after the funds are
available in the Freelancer
Escrow Account.
For Hourly Contracts,
Freelancer Fees become
available to Freelancers
following the expiration of
the dispute period and the
five-day security period.
For Fixed-Price Contracts,
the Freelancer Fees become
available to Freelancers
following the expiration of
the five-day security period
after the funds are
released. The security
period begins after Client
accepts and approves work
submitted by Freelancer.
Notwithstanding any
other provision of the Terms
of Service or the Escrow
Instructions, and except as
prohibited by applicable
law, if we believe, in our
sole discretion, that you
have violated the conditions
and restrictions of the Site
or the Terms of Service,
including by committing or
attempting to commit fraud
or other illicit acts on or
through the Site, Upwork
Escrow may refuse to process
or may hold the disbursement
of the Freelancer Fees and
take such other actions with
respect to the Escrow
Account as we deem
appropriate in our sole
discretion and in accordance
with applicable law. Without
limiting the foregoing,
Upwork Escrow, in its sole
discretion and to the extent
permitted by applicable law,
may also refuse to process
or may hold the disbursement
of the Freelancer Fees or
any other amounts and offset
amounts owed to us if: (a)
we require additional
information, such as
Freelancer’s tax
information,
government-issued
identification or other
proof of identity, address,
or date of birth; (b) we
have reason to believe the
Freelancer Fees may be
subject to dispute or
chargeback; (c) we suspect
fraud; (d) we believe there
are reasonable grounds for
insecurity with respect to
the performance of
obligations under this
Agreement or other Terms of
Service; or (e) we deem it
necessary in connection with
any investigation or
required by applicable law.
If, after investigation, we
determine that the hold on
the disbursement of the
Freelancer Fees is no longer
necessary, Upwork Escrow
will release such hold as
soon as practicable.
In addition,
notwithstanding any other
provision of the Terms of
Service or the Escrow
Instructions and to the
extent permitted by
applicable law, we reserve
the right to seek
reimbursement from you, and
you will reimburse us, if
we: (i) suspect fraud or
criminal activity associated
with your payment,
withdrawal, or Project; (ii)
discover erroneous or
duplicate transactions; or
(iii) have supplied our
services in accordance with
this Agreement yet we
receive any chargeback from
the Payment Method used by
you, or used by your Client
if you are a Freelancer,
despite our provision of the
Site Services in accordance
with this Agreement. You
agree that we have the right
to obtain such reimbursement
by instructing Upwork Escrow
to (and Upwork Escrow will
have the right to) charge
the applicable Escrow
Account, and any other
accounts you hold with us,
offsetting any amounts
determined to be owing,
deducting amounts from
future payments or
withdrawals, charging your
Payment Method, or obtaining
reimbursement from you by
any other lawful means. If
we are unable to obtain such
reimbursement, we may, in
addition to any other
remedies available under
applicable law, temporarily
or permanently revoke your
access to the Site and Site
Services and close your
Account.
6.4 NON-PAYMENT
If Client is in “default”,
meaning the Client fails to
pay the Freelancer Fees or
any other amounts when due
under the Terms of Service,
or a written agreement for
payment terms incorporating
the Terms of Service (signed
by an authorized
representative of Upwork),
Upwork will be entitled to
the remedies described in
this Section 6.4 in addition
to such other remedies that
may be available under
applicable law or in such
written agreement. For the
avoidance of doubt, Client
will be deemed to be in
default on the earliest
occurrence of any of the
following: (a) Client fails
to pay the Freelancer Fees
when due, (b) Client fails
to pay a balance that is due
or to bring, within a
reasonable period of time
but no more than 30 days, an
account current after a
credit or debit card is
declined or expires, (c)
Client fails to pay an
invoice issued to the Client
by Upwork within the time
period agreed or, if none,
within 30 days, (d) Client
initiates a chargeback with
a bank or other financial
institution resulting in a
charge made by Upwork for
Freelancer Fees or such
other amount due being
reversed to the Client, or
(e) Client takes other
actions or fails to take any
action that results in a
negative or past-due balance
on the Client’s account.
If Client is in
default, Upwork may, without
notice, temporarily or
permanently close Client’s
Account and revoke Client’s
access to the Site and Site
Services, including Client’s
authority to use the Site to
process any additional
payments, enter into Service
Contracts, or obtain any
additional Freelancer
Services from other Users
through the Site. However,
Client will remain
responsible for any amounts
that accrue on any open
Projects at the time a
limitation is put on the
Client’s Account as a result
of the default. Without
limiting other available
remedies, Client must pay
Upwork upon demand for any
amounts owed, plus interest
on the outstanding amount at
the lesser of one and
one-half percent (1.5%) per
month or the maximum
interest allowed by
applicable law, plus
attorneys’ fees and other
costs of collection to the
extent permitted by
applicable law.
Upwork or Upwork
Escrow, at our discretion
and to the extent permitted
by applicable law, may set
off amounts due against
other amounts received from
Client or held by Upwork or
Upwork Escrow for Client,
make appropriate reports to
credit reporting agencies
and law enforcement
authorities, and cooperate
with credit reporting
agencies and law enforcement
authorities in any
investigation or
prosecution.
6.5 NO RETURN OF
FUNDS
Client acknowledges
and agrees that Upwork
Escrow will charge Client’s
designated Payment Method
for the Freelancer Fees
incurred as described in the
applicable Escrow
Instructions and that once
Upwork Escrow charges or
debits the Client’s
designated Payment Method
for the Freelancer Fees, the
charge or debit is
non-refundable, except as
otherwise required by
applicable law. Client also
acknowledges and agrees that
the Terms of Service provide
a dispute resolution process
as a way for Client resolve
disputes. To the extent
permitted by applicable law,
Client therefore agrees not
to ask its credit card
company, bank, or other
Payment Method provider to
charge back any Freelancer
Fees or other fees charged
pursuant to the Terms of
Service for any reason. A
chargeback in breach of the
foregoing obligation is a
material breach of the Terms
of Service. If Client
initiates a chargeback in
violation of this Agreement,
Client agrees that Upwork or
Upwork Escrow may dispute or
appeal the chargeback and
institute collection action
against Client and take such
other action it deems
appropriate.
6.6 PAYMENT
METHODS
In order to use
certain Site Services,
Client must provide account
information for at least one
valid Payment Method.
Client hereby
authorizes Upwork, Upwork
Escrow, and Elance Limited
to run credit card
authorizations on all credit
cards provided by Client, to
store credit card and
banking or other financial
details as Client’s method
of payment consistent with
our Privacy
Policy, and to charge
Client’s credit card (or any
other Payment Method) for
the Freelancer Fees and any
other amounts owed under the
Terms of Service. To the
extent permitted by
applicable law and subject
to our Privacy Policy, you
acknowledge and agree that
we may use certain
third-party vendors and
service providers to process
payments and manage your
Payment Method information.
Payment Methods will
be charged by Upwork Escrow
in most countries.
Notwithstanding the
foregoing, Payment Methods
in Australia, Canada, the
Eurozone, and the United
Kingdom may be charged by
Elance Limited, an Ireland
registered company which is
an Affiliate of Upwork.
By providing Payment
Method information through
the Site and authorizing
payments with the Payment
Method, Client represents,
warrants, and covenants
that: (a) Client is legally
authorized to provide such
information; (b) Client is
legally authorized to make
payments using the Payment
Method(s); (c) if Client is
an employee or agent of a
company or person that owns
the Payment Method, that
Client is authorized by the
company or person to use the
Payment Method to make
payments on Upwork; and (d)
such actions do not violate
the terms and conditions
applicable to Client’s use
of such Payment Method(s) or
applicable law. When Client
authorizes a payment using a
Payment Method via the Site,
Client represents and
warrants that there are
sufficient funds or credit
available to complete the
payment using the designated
Payment Method. To the
extent that any amounts owed
under this Agreement or the
other Terms of Service
cannot be collected from
Client’s Payment Method(s),
Client is solely responsible
for paying such amounts by
other means.
Because the use of any
Payment Method may be
limited by applicable law or
by written agreement with
your financial institution,
Upwork is not liable to any
User if Upwork does not
complete a transaction as a
result of any such limit, or
if a financial institution
fails to honor any credit or
debit to or from an account
associated with such Payment
Method. Upwork will make
commercially reasonable
efforts to work with any
such affected Users to
resolve such transactions in
a manner consistent with
this Agreement and any
applicable Escrow
Instructions.
6.7 U.S. DOLLARS
AND FOREIGN CURRENCY
CONVERSION
The Site and the Site
Services operate in U.S.
Dollars. If Client’s Payment
Method is denominated in a
currency other than U.S.
Dollars and requires
currency conversion to make
payments in U.S. Dollars,
the Site may display foreign
currency conversion rates
that Upwork, Upwork Escrow,
or our Affiliates currently
make available to convert
supported foreign currencies
to U.S. Dollars. These
foreign currency conversion
rates adjust regularly based
on market conditions. Please
note that the wholesale
currency conversion rates at
which we or our Affiliates
obtain foreign currency will
usually be different than
the foreign currency
conversion rates offered on
the Site. Client, at its
sole discretion and risk,
may authorize the charge or
debit of its Payment Method
in a supported foreign
currency and the conversion
of the payment to U.S.
Dollars at the foreign
currency conversion rate
displayed on the Site. A
list of supported foreign
currencies is available on
the Site. If foreign
currency conversion is
required to make a payment
in U.S. Dollars and either
Upwork, Upwork Escrow, or
our Affiliates does not
support the foreign currency
or Client does not authorize
the conversion of such
payment at the foreign
currency conversion rate
displayed on the Site,
Upwork Escrow or one of our
Affiliate will charge or
debit Client’s Payment
Method in U.S. Dollars and
Client’s Payment Method
provider will convert the
payment at a foreign
currency conversion rate
selected by Client’s Payment
Method provider. Client’s
Payment Method provider may
also charge fees directly to
the Payment Method even when
no currency conversion is
involved. Client’s
authorization of a payment
using a foreign currency
conversion rate displayed on
the Site is at Client’s sole
risk. Upwork, Upwork Escrow,
and our Affiliates are not
responsible for currency
fluctuations that occur when
billing or crediting a
Payment Method denominated
in a currency other than
U.S. Dollars. Upwork, Upwork
Escrow, and our Affiliates
are not responsible for
currency fluctuations that
occur when receiving or
sending payments via wire
transfer, check or automated
clearinghouse to and from
the Escrow Account.
7.
NON-CIRCUMVENTION
Section 7 discusses
your agreement to make and
receive payments only
through Upwork for two years
from the date you first meet
your Client or Freelancer on
the Site, unless you pay an
Opt-Out-Fee, as detailed
below.
7.1
MAKING PAYMENTS THROUGH
UPWORK
You acknowledge and
agree that a substantial
portion of the compensation
Upwork receives for making
the Site available to you is
collected through the
Service Fee described in
Section 5.1. Upwork only
receives this Service Fee
when a Client and a
Freelancer pay and receive
payment through the Site.
Therefore, for 24 months
from the time you identify
or are identified by any
party through the Site (the
“Non-Circumvention
Period”), you agree to use
the Site as your exclusive
method to request, make, and
receive all payments for
work directly or indirectly
with that party or arising
out of your relationship
with that party (the “Upwork Relationship”). For the avoidance
of doubt, if you, or the
business you represent, did
not identify and were not
identified by another party
through the Site, such as if
you and another User worked
together before meeting on
the Site, then the
Non-Circumvention Period
does not apply. If you use
the Site as an employee,
agent, or representative of
another business, then the
Non-Circumvention Period
applies to you and other
employees, agents, or
representatives of the
business when acting in that
capacity with respect to the
other User.
Except if you pay the
Opt-Out Fee (see Section
7.2), you agree not to
circumvent the Payment
Methods offered by the Site.
By way of illustration and
not in limitation of the
foregoing, you agree not to:
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify
Upwork immediately if a
person suggests to you
making or receiving payments
outside of the Site in
violation of this Section
7.1. If you are aware of a
breach or potential breach
of this non-circumvention
agreement, please submit a
confidential report to
Upwork by sending an email
message to:
policy-reports@upwork.com.
If you refuse to
accept any new version of
the Terms of Service or
elect not to comply with
certain conditions of using
the Site, such as minimum
rates supported on the Site,
and therefore choose to
cease using the Site, you
may pay the Opt-Out Fee for
each other User you wish to
continue working with on
whatever terms you agree
after you cease using the
Site.
7.2 OPTING OUT
You may opt-out of the
obligation in Section 7.1
with respect to each Upwork
Relationship only if the
Client or prospective Client
or Freelancer pays Upwork an
opt-out fee for each such
relationship (the “Opt-Out Fee”).
The Opt-Out Fee is
computed as follows
(a) interest
at the rate of 18% per
annum or the maximum
rate permitted by
applicable law,
whichever is less, on
the amount calculated in
(b), from the date
Client first makes
payment to the subject
Freelancer until the
date the Opt-Out Fee is
paid; and
(b) the
greater of:
(i) $3,500; or
(ii) 25% of
the anticipated
annualized salary or
wages for one year if
the Client offers
Freelancer employment
directly; or
(iii) all
Service Fees that would
be earned by Upwork from
the Upwork Relationship
during the
Non-Circumvention
Period, computed based
on the annualized amount
earned by Freelancer
from Client during the
most recent normalized
8-week period, or during
such shorter period as
data is available to
Upwork;
(iv) provided,
however, that if the
amount in (ii) and (iii)
cannot be ascertained
due to uncertainty or
lack of sufficient
information, then Upwork
and you agree that fee
shall be $3,500; if only
one of (ii) or (iii) can
be ascertained, then
Upwork and you agree
that amount shall be
used if it is greater
than $3,500.
To pay the Opt-Out
Fee, you must request
instructions by sending an
email message to optoutfee@upwork.com.
If Upwork determines,
in its sole discretion, that
you have violated Section 7,
Upwork or its Affiliates
may, to the maximum extent
permitted by law (x) charge
your Payment Method the
Opt-Out Fee (including
interest) if permitted by
law or send you an invoice
for the Opt-Out Fee
(including interest), which
you agree to pay within 30
days, (y) close your Account
and revoke your
authorization to use the
Site and Site Services,
and/or (z) charge you for
all losses and costs
(including any and all time
of Upwork’s employees) and
reasonable expenses
(including attorneys’ fees)
related to investigating
such breach and collecting
such fees.
8. RECORDS OF
COMPLIANCE
Section 8 discusses
your agreement to make and
keep all required records,
as detailed below.
Users will each (a)
create and maintain records
to document satisfaction of
their respective obligations
under this Agreement,
including, without
limitation, their respective
payment obligations and
compliance with tax and
employment laws, and (b)
provide copies of such
records to Upwork upon
request. Nothing in this
subsection requires or will
be construed as requiring
Upwork to supervise or
monitor a User’s compliance
with this Agreement, the
other Terms of Service, or a
Service Contract. You are
solely responsible for
creation, storage, and
backup of your business
records. This Agreement and
any registration for or
subsequent use of the Site
will not be construed as
creating any responsibility
on Upwork’s part to store,
backup, retain, or grant
access to any information or
data for any period.
9. WARRANTY
DISCLAIMER
Section 9 discusses
your agreement and
understanding that the Site
and Site Services may not
always be available or work
perfectly, as detailed
below.
YOU AGREE NOT TO RELY
ON THE SITE, THE SITE
SERVICES, ANY INFORMATION ON
THE SITE OR THE CONTINUATION
OF THE SITE. THE SITE AND
THE SITE SERVICES ARE
PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS. UPWORK
MAKES NO REPRESENTATIONS OR
WARRANTIES WITH REGARD TO
THE SITE, THE SITE SERVICES,
WORK PRODUCT, OR ANY
ACTIVITIES OR ITEMS RELATED
TO THIS AGREEMENT OR THE
TERMS OF SERVICE. TO THE
MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UPWORK
DISCLAIMS ALL EXPRESS AND
IMPLIED CONDITIONS,
REPRESENTATIONS, AND
WARRANTIES INCLUDING, BUT
NOT LIMITED TO, THE
WARRANTIES OF
MERCHANTABILITY, ACCURACY,
FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND
NON-INFRINGEMENT. SOME
JURISDICTIONS MAY NOT ALLOW
FOR ALL OF THE FOREGOING
LIMITATIONS ON WARRANTIES,
SO TO THAT EXTENT, SOME OR
ALL OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU.
SECTION 14 (TERM AND
TERMINATION) STATES USER’S
SOLE AND EXCLUSIVE REMEDY
AGAINST UPWORK WITH RESPECT
TO ANY DEFECTS,
NON-CONFORMANCES, OR
DISSATISFACTION.
10. LIMITATION OF
LIABILITY
Section 10 discusses
your agreement that Upwork
usually will not have to pay
you damages relating to your
use of the Site and Site
Services and, if it is, at
most it will be required to
pay you $2,500, as detailed
below.
Upwork is not liable,
and you agree not to hold us
responsible, for any damages
or losses arising out of or
in connection with the Terms
of Service, including, but
not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO
EVENT WILL UPWORK, OUR
AFFILIATES, OUR LICENSORS,
OR OUR THIRD-PARTY SERVICE
PROVIDERS BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE,
EXEMPLARY, OR INDIRECT COSTS
OR DAMAGES, INCLUDING, BUT
NOT LIMITED TO, LITIGATION
COSTS, INSTALLATION AND
REMOVAL COSTS, OR LOSS OF
DATA, PRODUCTION, PROFIT, OR
BUSINESS OPPORTUNITIES. THE
LIABILITY OF UPWORK, OUR
AFFILIATES, OUR LICENSORS,
AND OUR THIRD-PARTY SERVICE
PROVIDERS TO ANY USER FOR
ANY CLAIM ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE WILL NOT EXCEED
THE LESSER OF: (A) $2,500;
OR (B) ANY FEES RETAINED BY
UPWORK WITH RESPECT TO
SERVICE CONTRACTS ON WHICH
USER WAS INVOLVED AS CLIENT
OR FREELANCER DURING THE
SIX-MONTH PERIOD PRECEDING
THE DATE OF THE CLAIM. THESE
LIMITATIONS WILL APPLY TO
ANY LIABILITY, ARISING FROM
ANY CAUSE OF ACTION
WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER TERMS
OF SERVICE, WHETHER IN
CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE,
EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH COSTS OR
DAMAGES AND EVEN IF THE
LIMITED REMEDIES PROVIDED
HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME
STATES AND JURISDICTIONS DO
NOT ALLOW FOR ALL OF THE
FOREGOING EXCLUSIONS AND
LIMITATIONS, SO TO THAT
EXTENT, SOME OR ALL OF THESE
LIMITATIONS AND EXCLUSIONS
MAY NOT APPLY TO YOU.
11. RELEASE
Section 11 discusses
your agreement not to hold
us responsible for any
dispute you may have with
another User, as detailed
below.
In addition to the
recognition that Upwork is
not a party to any contract
between Users, you hereby
release Upwork, our
Affiliates, and our
respective officers,
directors, agents,
subsidiaries, joint
ventures, employees and
service providers from
claims, demands, and damages
(actual and consequential)
of every kind and nature,
known and unknown, arising
out of or in any way
connected with any dispute
you have with another User,
whether it be at law or in
equity that exist as of the
time you enter into this
agreement. This release
includes, for example and
without limitation, any
disputes regarding the
performance, functions, and
quality of the Freelancer
Services provided to Client
by a Freelancer and requests
for refunds based upon
disputes. Procedures
regarding the handling of
certain disputes between
Users are discussed in the
Escrow Instructions.
TO THE EXTENT
APPLICABLE, YOU HEREBY WAIVE
THE PROTECTIONS OF
CALIFORNIA CIVIL CODE § 1542
(AND ANY ANALOGOUS LAW IN
ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not
apply to a claim that Upwork
failed to meet our
obligations under the Terms
of Service.
12.
INDEMNIFICATION
Section 12 discusses
your agreement to pay for
any costs or losses we have
as a result of a claim
brought against us related
to your use of the Site or
Site Services or your
illegal or harmful conduct,
as detailed below.
You will indemnify,
defend, and hold harmless
Upwork, our Affiliates, and
our respective directors,
officers, employees,
representatives, and agents
(each an “Indemnified Party”) for all Indemnified
Claims (defined below) and
Indemnified Liabilities
(defined below) relating to
or arising out of: (a) the
use of the Site and the Site
Services by you or your
agents, including any
payment obligations or
default (described in
Section 6.4 (Non-Payment))
incurred through use of the
Site Services; (b) any
Service Contract entered
into by you or your agents,
including, but not limited
to, the classification of a
Freelancer as an independent
contractor; the
classification of Upwork as
an employer or joint
employer of Freelancer; any
employment-related claims,
such as those relating to
employment termination,
employment discrimination,
harassment, or retaliation;
and any claims for unpaid
wages or other compensation,
overtime pay, sick leave,
holiday or vacation pay,
retirement benefits,
worker’s compensation
benefits, unemployment
benefits, or any other
employee benefits; (c)
failure to comply with the
Terms of Service by you or
your agents; (d) failure to
comply with applicable law
by you or your agents; (e)
negligence, willful
misconduct, or fraud by you
or your agents; and (f)
defamation, libel, violation
of privacy rights, unfair
competition, or infringement
of Intellectual Property
Rights or allegations
thereof to the extent caused
by you or your agents. For
purposes of this Section 12,
your agents includes any
person who has apparent
authority to access or use
your account demonstrated by
using your username and
password.
“Indemnified Claim” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by you or a
third party or other User
against an Indemnified
Party.
“Indemnified Liability” means any and all
claims, damages,
liabilities, costs, losses,
and expenses (including
reasonable attorneys’ fees
and all related costs and
expenses) arising from or
relating to any claim, suit,
proceeding, demand, or
action brought by an
Indemnified Party against
you or a third party or
other User.
13. AGREEMENT
TERM AND TERMINATION
Section 13 discusses
your and Upwork’s agreement
about when and how long this
Agreement will last, when
and how either you or Upwork
can end this Agreement, and
what happens if either of us
ends the Agreement, as
detailed below.
13.1
TERMINATION
Unless both you and
Upwork expressly agree
otherwise in writing, either
of us may terminate this
Agreement in our sole
discretion, at any time,
without explanation, upon
written notice to the other,
which will result in the
termination of the other
Terms of Service as well,
except as otherwise provided
herein. You may provide
written notice to legalnotices@upwork.com. In the event you
properly terminate this
Agreement, your right to use
the Site and Site Services
is automatically revoked,
and your Account will be
closed. Upwork is not a
party to any Service
Contract between Users.
Consequently, User
understands and acknowledges
that termination of this
Agreement (or attempt to
terminate this Agreement)
does not terminate or
otherwise impact any Service
Contract or Project entered
into between Users. If you
attempt to terminate this
Agreement while having one
or more open Projects, you
agree (a) you hereby
instruct Upwork to close any
open contracts; (b) you will
continue to be bound by this
Agreement and the other
Terms of Service until all
such Projects have closed on
the Site; (c) Upwork will
continue to perform those
Site Services necessary to
complete any open Project or
related transaction between
you and another User; and
(d) you will continue to be
obligated to pay any amounts
accrued but unpaid as of the
date of termination or as of
the closure of any open
Service Contracts, whichever
is later, to Upwork for any
Site Services or such other
amounts owed under the Terms
of Service and to any
Freelancers for any
Freelancer Services.
Without limiting
Upwork’s other rights or
remedies, we may, but are
not obligated to,
temporarily or indefinitely
revoke access to the Site or
Site Services, deny your
registration, or permanently
revoke your access to the
Site and refuse to provide
any or all Site Services to
you if: (i) you breach the
letter or spirit of any
terms and conditions of this
Agreement or any other
provisions of the Terms of
Service; (ii) we suspect or
become aware that you have
provided false or misleading
information to us; or (iii)
we believe, in our sole
discretion, that your
actions may cause legal
liability for you, our
Users, or Upwork or our
Affiliates; may be contrary
to the interests of the Site
or the User community; or
may involve illicit or
illegal activity. If your
Account is temporarily or
permanently closed, you may
not use the Site under the
same Account or a different
Account or reregister under
a new Account without
Upwork’s prior written
consent. If you attempt to
use the Site under a
different Account, we
reserve the right to reclaim
available funds in that
Account and/or use an
available Payment Method to
pay for any amounts owed by
you to the extent permitted
by applicable law.
You acknowledge and
agree that the value,
reputation, and goodwill of
the Site depend on
transparency of User’s
Account status to all Users,
including both yourself and
other Users who have entered
into Service Contracts with
you. You therefore agree as
follows: IF UPWORK DECIDES TO
TEMPORARILY OR PERMANENTLY
CLOSE YOUR ACCOUNT, UPWORK
HAS THE RIGHT WHERE ALLOWED
BY LAW BUT NOT THE
OBLIGATION TO: (A) NOTIFY
OTHER USERS THAT HAVE
ENTERED INTO SERVICE
CONTRACTS WITH YOU TO INFORM
THEM OF YOUR CLOSED ACCOUNT
STATUS, (B) PROVIDE THOSE
USERS WITH A SUMMARY OF THE
REASONS FOR YOUR ACCOUNT
CLOSURE. YOU AGREE THAT
UPWORK WILL HAVE NO
LIABILITY ARISING FROM OR
RELATING TO ANY NOTICE THAT
IT MAY PROVIDE TO ANY USER
REGARDING CLOSED ACCOUNT
STATUS OR THE REASON(S) FOR
THE CLOSURE.
13.2 ACCOUNT DATA
ON CLOSURE
Except as otherwise
required by law, if your
Account is closed for any
reason, you will no longer
have access to data,
messages, files, or other
material you keep on the
Site and that that any
closure of your Account may
involve deletion of any
content stored in your
Account for which Upwork
will have no liability
whatsoever. Upwork, in its
sole discretion and as
permitted or required by
law, may retain some or all
of your Account information.
13.3 SURVIVAL
After this Agreement
terminates, the terms of
this Agreement and the other
Terms of Service that
expressly or by their nature
contemplate performance
after this Agreement
terminates or expires will
survive and continue in full
force and effect. For
example, the provisions
requiring arbitration,
permitting audits,
protecting intellectual
property, requiring
non-circumvention,
indemnification, payment of
fees, reimbursement and
setting forth limitations of
liability each, by their
nature, contemplate
performance or observance
after this Agreement
terminates. Without limiting
any other provisions of the
Terms of Service, the
termination of this
Agreement for any reason
will not release you or
Upwork from any obligations
incurred prior to
termination of this
Agreement or that thereafter
may accrue in respect of any
act or omission prior to
such termination.
14. DISPUTES
BETWEEN YOU AND UPWORK
Section 14 discusses
your agreement with Upwork
and our agreement with you
about how we will resolve
any disputes, including that
we will both first try to
resolve any dispute
informally and, if you are
in the United States, that
we both agree to use
arbitration instead of going
to court or using a jury if
we can’t resolve the dispute
informally, as detailed
below.
14.1 DISPUTE
PROCESS, ARBITRATION,
AND SCOPE
If a dispute arises
between you and Upwork or
our Affiliates, our goal is
to resolve the dispute
quickly and
cost-effectively.
Accordingly, unless you opt
out as provided in Section
14.4.4 below, you, Upwork,
and our Affiliates agree to
resolve any claim, dispute,
or controversy that arises
out of or relates to this
Agreement, the other Terms
of Service, your
relationship with Upwork
(including without
limitation any claimed
employment with Upwork or
one of our Affiliates or
successors), the termination
of your relationship with
Upwork, or the Site Services
(each, a “Claim”) in accordance with
this Section 14 (sometimes
referred to as the “Arbitration Provision”).
Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes, or
controversies arising out of
or relating to this
Agreement, the Terms of
Service, any Service
Contract, escrow payments or
agreements, any payments or
monies you claim are due to
you from Upwork or our
Affiliates or successors,
trade secrets, unfair
competition, false
advertising, consumer
protection, privacy,
compensation,
classification, minimum
wage, seating, expense
reimbursement, overtime,
breaks and rest periods,
termination, discrimination,
retaliation or harassment
and claims arising under the
Defend Trade Secrets Act of
2016, Civil Rights Act of
1964, Rehabilitation Act,
Civil Rights Acts of 1866
and 1871, Civil Rights Act
of 1991, the Pregnancy
Discrimination Act,
Americans With Disabilities
Act, Age Discrimination in
Employment Act, Family
Medical Leave Act, Fair
Labor Standards Act,
Employee Retirement Income
Security Act (except for
claims for employee benefits
under any benefit plan
sponsored by the Company and
(a) covered by the Employee
Retirement Income Security
Act of 1974 or (b) funded by
insurance), Affordable Care
Act, Genetic Information
Non-Discrimination Act,
Uniformed Services
Employment and Reemployment
Rights Act, Worker
Adjustment and Retraining
Notification Act, Older
Workers Benefits Protection
Act of 1990, Occupational
Safety and Health Act,
Consolidated Omnibus Budget
Reconciliation Act of 1985,
False Claims Act, state
statutes or regulations
addressing the same or
similar subject matters, and
all other federal or state
legal claims arising out of
or relating to your
relationship with Upwork or
the termination of that
relationship.
Disputes between the
parties that may not be
subject to predispute
arbitration agreement as
provided by the Dodd-Frank
Wall Street Reform and
Consumer Protection Act
(Public Law 111-203) or as
provided by an Act of
Congress or lawful,
enforceable Executive Order,
are excluded from the
coverage of this Agreement.
14.2 CHOICE OF
LAW
These Site Terms of
Use, the other Terms of
Service, and any Claim will
be governed by and construed
in accordance with the laws
of the State of Delaware,
without regard to its
conflict of law provisions
and excluding the United
Nations Convention on
Contracts for the
International Sale of Goods
(CISG); provided, however,
that any Claims made by any
Freelancer located within
the United States will be
governed by the law of the
state in which such
Freelancer resides. However,
notwithstanding the
foregoing sentence, this
Arbitration Provision is
governed by the Federal
Arbitration Act (9 U.S.C. §§
1 et seq.).
14.3 INFORMAL
DISPUTE RESOLUTION
Before serving a
demand for arbitration of a
Claim, you and Upwork agree
to first notify each other
of the Claim. You agree to
notify Upwork of the Claim
at Attn: Legal, 441 Logue
Ave., Mountain View, CA
94043 or by email to legalnotices@upwork.com, and Upwork agrees to
provide to you a notice at
your email address on file
(in each case, a “Notice”). You and Upwork
then will seek informal
voluntary resolution of the
Claim. Any Notice must
include pertinent account
information, a brief
description of the Claim,
and contact information, so
that you or Upwork, as
applicable, may evaluate the
Claim and attempt to
informally resolve the
Claim. Both you and Upwork
will have 60 days from the
date of the receipt of the
Notice to informally resolve
the other party’s Claim,
which, if successful, will
avoid the need for further
action.
14.4 BINDING
ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER
(DOES NOT APPLY TO USERS
LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Arbitration
Provision applies to all
Users except Users located
outside of the United States
and its territories.
In the unlikely event
the parties are unable to
resolve a Claim within 60
days of the receipt of the
applicable Notice, you,
Upwork, and our Affiliates
agree to resolve the Claim
by final and binding
arbitration before an
arbitrator from JAMS,
instead of a court or jury.
JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF
ARBITRATION AGREEMENT AND
CONDUCT OF ARBITRATION
This Arbitration
Provision applies to any
Claim (defined above) the
parties may have and
survives after your
relationship with Upwork
ends. Claims covered by this
Arbitration Provision
include, but are not limited
to, all claims, disputes or
controversies arising out of
or relating to this
Agreement, the Terms of
Service and the Upwork
Payroll Agreement. This
Arbitration Provision is
intended to apply to the
resolution of disputes that
otherwise would be resolved
in a court of law or before
a forum other than
arbitration. If for any
reason JAMS will not
administer the arbitration,
either party may apply to a
court of competent
jurisdiction with authority
over the location where the
arbitration will be
conducted for appointment of
a neutral arbitrator.
Except as otherwise
provided herein, arbitration
will be conducted in Santa
Clara County, California in
accordance with the JAMS
Comprehensive Arbitration
Rules and Procedures’
Optional Expedited
Arbitration Procedures then
in effect. Arbitration of
disputes brought by a User
that allege a violation of a
consumer protection statute
also will be subject to the
JAMS Consumer Arbitration
Minimum Standards, and such
arbitrations will be
conducted in the same state
and within 25 miles of where
the User is located. Claims
by Freelancers that allege
employment or worker
classification disputes or
will be conducted in the
state and within 25 miles of
where Freelancer is located
in accordance with the JAMS
Employment Arbitration Rules
and Procedures then in
effect. The applicable JAMS
arbitration rules may be
found at www.jamsadr.com or by searching
online for “JAMS
Comprehensive Arbitration
Rules and Procedures,” “JAMS
Employment Arbitration
Rules,” or “JAMS Consumer
Arbitration Minimum
Standards.” Any dispute
regarding the applicability
of a particular set of JAMS
rules shall be resolved
exclusively by the
arbitrator. Any party will
have the right to appear at
the arbitration by telephone
and/or video rather than in
person.
You and Upwork will
follow the applicable JAMS
rules with respect to
arbitration fees. In any
arbitration under the JAMS
Employment Arbitration Rules
and Procedures, the
Freelancer will pay JAMS
arbitration fees only to the
extent those fees are no
greater than the filing or
initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, with Upwork to
make up the difference, if
any. In any arbitration
under the JAMS Comprehensive
Arbitration Rules and
Procedures’ Optional
Expedited Arbitration
Procedures then in effect in
which a User makes a claim
under a consumer protection
statute, the User will pay
JAMS arbitration fees only
to the extent those fees are
no greater than the filing
or initial appearance fees
applicable to court actions
in the jurisdiction where
the arbitration will be
conducted, or $250.00,
whichever is less, with
Upwork to make up the
difference, if any. The
arbitrator must follow
applicable law and may award
only those remedies that
would have applied had the
matter been heard in court.
Judgment may be entered on
the arbitrator’s decision in
any court having
jurisdiction.
This Arbitration
Provision does not apply to
litigation between Upwork
and you that is or was
already pending in a state
or federal court or
arbitration before the
expiration of the opt-out
period set forth in Section
14.4.4, below.
Notwithstanding any other
provision of this Agreement,
no amendment to this
Arbitration Provision will
apply to any matter pending
in an arbitration proceeding
brought under this Section
14 unless all parties to
that arbitration consent in
writing to that amendment.
This Arbitration
Provision also does not
apply to claims for workers
compensation, state
disability insurance or
unemployment insurance
benefits.
Nothing in this
Arbitration Provision
prevents you from making a
report to or filing a claim
or charge with a government
agency, including without
limitation the Equal
Employment Opportunity
Commission, U.S. Department
of Labor, U.S. Securities
and Exchange Commission,
National Labor Relations
Board, or Office of Federal
Contract Compliance
Programs. Nothing in this
Arbitration Provision
prevents the investigation
by a government agency of
any report, claim or charge
otherwise covered by this
Arbitration Provision. This
Arbitration Provision also
does not prevent federal
administrative agencies from
adjudicating claims and
awarding remedies based on
those claims, even if the
claims would otherwise be
covered by this Arbitration
Provision. Nothing in this
Arbitration Provision
prevents or excuses a party
from satisfying any
conditions precedent and/or
exhausting administrative
remedies under applicable
law before bringing a claim
in arbitration. Upwork will
not retaliate against you
for filing a claim with an
administrative agency or for
exercising rights
(individually or in concert
with others) under Section 7
of the National Labor
Relations Act.
14.4.2. INTERPRETATION
AND ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration
Provision is the full and
complete agreement relating
to the formal resolution of
Claims. Except as otherwise
provided in this Arbitration
Provision, this Arbitration
Provision covers, and the
arbitrator shall have
exclusive jurisdiction to
decide, all disputes arising
out of or relating to the
interpretation, enforcement,
or application of this
Arbitration Provision,
including the
enforceability,
revocability, scope, or
validity of the Arbitration
Provision or any portion of
the Arbitration Provision.
All such matters shall be
decided by an arbitrator and
not by a court. The parties
expressly agree that the
arbitrator and not a court
will decide any question of
whether the parties agreed
to arbitrate, including but
not limited to any claim
that all or part of this
Arbitration Provision, this
Agreement, or any other part
of the Terms of Service is
void or voidable.
In the event any
portion of this Arbitration
Provision is deemed
unenforceable, the remainder
of this Arbitration
Provision will be
enforceable. If any portion
of the Class Action Waiver
in subsection C, below, of
this Arbitration Provision
is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
14.4.3. CLASS AND
COLLECTIVE WAIVER
Private attorney
general representative
actions under the California
Labor Code are not
arbitrable, not within the
scope of this Arbitration
Provision and may be
maintained in a court of
law. However, this
Arbitration Provision
affects your ability to
participate in class or
collective actions. Both you
and Upwork agree to bring
any dispute in arbitration
on an individual basis only,
and not on a class or
collective basis on behalf
of others. There will be no
right or authority for any
dispute to be brought, heard
or arbitrated as a class or
collective action, or as a
member in any such class or
collective proceeding
(“Class Action Waiver”).
Notwithstanding any other
provision of this Agreement
or the JAMS rules, disputes
regarding the
enforceability,
revocability, scope, or
validity or breach of the
Class Action Waiver may be
resolved only by a civil
court of competent
jurisdiction and not by an
arbitrator. In any case in
which (1) the dispute is
filed as a class or
collective action and (2)
there is a final judicial
determination that all or
part of the Class Action
Waiver is unenforceable, the
class or collective action
to that extent must be
litigated in a civil court
of competent jurisdiction,
but the portion of the Class
Action Waiver that is
enforceable shall be
enforced in arbitration. You
and Upwork agree that you
will not be retaliated
against, disciplined or
threatened with discipline
as a result of your filing
or participating in a class
or collective action in any
forum. However, Upwork may
lawfully seek enforcement of
this Arbitration Provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class or
collective actions or
claims.
14.4.4. RIGHT TO OPT
OUT OF THE ARBITRATION
PROVISION
You may opt out of the
Arbitration Provision
contained in this Section 14
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site. To opt out, you must
send a written notification
to Upwork at Attn: Legal,
441 Logue Ave., Mountain
View, CA 94043 that includes
(a) your Account username,
(b) your name, (c) your
address, (d) your telephone
number, (e) your email
address, and (f) a statement
indicating that you wish to
opt out of the Arbitration
Provision. Alternatively,
you may send this written
notification to legalnotices@upwork.com. Opting out of this
Arbitration Provision will
not affect any other terms
of this Agreement.
If you do not opt out
as provided in this Section
14.4.4, continuing your
relationship with Upwork
constitutes mutual
acceptance of the terms of
this Arbitration Provision
by you and Upwork. You have
the right to consult with
counsel of your choice
concerning this Agreement
and the Arbitration
Provision.
14.4.5. Enforcement of
this Arbitration Provision.
This Arbitration
Provision replaces all prior
agreements regarding the
arbitration of disputes and
is the full and complete
agreement relating to the
formal resolution of
disputes covered by this
Arbitration Provision. In
the event any portion of
this Arbitration Provision
is deemed unenforceable, the
remainder of this
Arbitration Provision will
be enforceable. If any
portion of the Class Action
Waiver in Section 14.4.3,
above, is deemed to be
unenforceable, you and
Upwork agree that this
Arbitration Provision will
be enforced to the fullest
extent permitted by law.
15. GENERAL
Section 15 discusses
additional terms of the
agreement between you and
Upwork, including that the
Terms of Service contain our
full agreement, how the
agreement will be
interpreted and applied, and
your agreement not to access
the Site from certain
locations, as detailed
below.
15.1 ENTIRE
AGREEMENT
This Agreement,
together with the other
Terms of Service, sets forth
the entire agreement and
understanding between you
and Upwork relating to the
subject matter hereof and
thereof and cancels and
supersedes any prior or
contemporaneous discussions,
agreements, representations,
warranties, and other
communications between you
and us, written or oral, to
the extent they relate in
any way to the subject
matter hereof and thereof.
The section headings in the
Terms of Service are
included for ease of
reference only and have no
binding effect. Even though
Upwork drafted the Terms of
Service, you represent that
you had ample time to review
and decide whether to agree
to the Terms of Service. If
an ambiguity or question of
intent or interpretation of
the Terms of Service arises,
no presumption or burden of
proof will arise favoring or
disfavoring you or Upwork
because of the authorship of
any provision of the Terms
of Service.
15.2
MODIFICATIONS; WAIVER
No modification or
amendment to the Terms of
Service will be binding upon
Upwork unless in a written
instrument signed by a duly
authorized representative of
Upwork or posted on the Site
by Upwork. Our failure to act
with respect to a breach by
you or others does not waive
our right to act with
respect to subsequent or
similar breaches. We do not
guarantee we will take
action against all breaches
of this User Agreement.
15.3
ASSIGNABILITY
User may not assign
the Terms of Service, or any
of its rights or obligations
hereunder, without Upwork’s
prior written consent in the
form of a written instrument
signed by a duly authorized
representative of Upwork.
Upwork may freely assign
this Agreement and the other
Terms of Service without
User’s consent. Any
attempted assignment or
transfer in violation of
this subsection will be null
and void. Subject to the
foregoing restrictions, the
Terms of Service are binding
upon and will inure to the
benefit of the successors,
heirs, and permitted assigns
of the parties.
15.4 SEVERABILITY
If and to the extent
any provision of this
Agreement or the other Terms
of Service is held illegal,
invalid, or unenforceable in
whole or in part under
applicable law, such
provision or such portion
thereof will be ineffective
as to the jurisdiction in
which it is illegal,
invalid, or unenforceable to
the extent of its
illegality, invalidity, or
unenforceability and will be
deemed modified to the
extent necessary to conform
to applicable law so as to
give the maximum effect to
the intent of the parties.
The illegality, invalidity,
or unenforceability of such
provision in that
jurisdiction will not in any
way affect the legality,
validity, or enforceability
of such provision in any
other jurisdiction or of any
other provision in any
jurisdiction.
15.5 FORCE
MAJEURE
The parties to this
Agreement will not be
responsible for the failure
to perform or any delay in
performance of any
obligation hereunder for a
reasonable period due to
labor disturbances,
accidents, fires, floods,
telecommunications or
Internet failures, strikes,
wars, riots, rebellions,
blockades, acts of
government, governmental
requirements and regulations
or restrictions imposed by
law or any other similar
conditions beyond the
reasonable control of such
party.
15.6 PREVAILING
LANGUAGE AND LOCATION
The English language
version of the Terms of
Service will be controlling
in all respects and will
prevail in case of any
inconsistencies with
translated versions, if any.
The Site is controlled and
operated from our facilities
in the United States.
15.7 ACCESS OF
THE SITE OUTSIDE THE
UNITED STATES
Upwork makes no
representations that the
Site is appropriate or
available for use outside of
the United States. Those who
access or use the Site from
other jurisdictions do so at
their own risk and are
entirely responsible for
compliance with all
applicable foreign, United
States, state, and local
laws and regulations,
including, but not limited
to, export and import
regulations, including the
Export Administration
Regulations maintained by
the United States Department
of Commerce and the
sanctions programs
maintained by the Department
of the Treasury Office of
Foreign Assets Control. You
must not directly or
indirectly sell, export,
re-export, transfer, divert,
or otherwise dispose of any
software or service to any
end user without obtaining
any and all required
authorizations from the
appropriate government
authorities. You also
warrant that you are not
prohibited from receiving
U.S. origin products,
including services or
software.
In order to access or
use the Site or Site
Services, you must and
hereby represent that you
are not: (a) a citizen or
resident of a geographic
area in which access to or
use of the Site or Site
Services is prohibited by
applicable law, decree,
regulation, treaty, or
administrative act; (b) a
citizen or resident of, or
located in, a geographic
area that is subject to U.S.
or other sovereign country
sanctions or embargoes; or
(c) an individual, or an
individual employed by or
associated with an entity,
identified on the U.S.
Department of Commerce
Denied Persons or Entity
List, the U.S. Department of
Treasury Specially
Designated Nationals or
Blocked Persons Lists, or
the U.S. Department of State
Debarred Parties List or
otherwise ineligible to
receive items subject to
U.S. export control laws and
regulations or other
economic sanction rules of
any sovereign nation. You
agree that if your country
of residence or other
circumstances change such
that the above
representations are no
longer accurate, that you
will immediately cease using
the Site and Site Services
and your license to use the
Site or Site Services will
be immediately revoked.
15.8 CONSENT TO
USE ELECTRONIC RECORDS
In connection with the
Site Terms of Use, you may
be entitled to receive
certain records from Upwork
or our Affiliates, such as
contracts, notices, and
communications, in writing.
To facilitate your use of
the Site and the Site
Services, you give us
permission to provide these
records to you
electronically instead of in
paper form.
16. DEFINITIONS
Section 16 gives you
some definitions of
capitalized terms that
appear in the Terms of
Service but other
capitalized terms are
defined above, which you can
tell because the term is put
in quotation marks and bold
font.
Capitalized terms not
defined below or above have
the meanings described in
the Site Terms of Use or
elsewhere in the Terms of
Service.
“Confidential
Information” means any material
or information provided to,
or created by, a User to
evaluate a Project or the
suitability of another User
for the Project, regardless
of whether the information
is in tangible, electronic,
verbal, graphic, visual, or
other form. Confidential
Information does not include
material or information that
is known to the public or
that: (a) is generally known
by third parties as a result
of no act or omission of
Freelancer or Client; (b)
subsequent to disclosure
hereunder, was lawfully
received without restriction
on disclosure from a third
party having the right to
disseminate the information;
(c) was already known by
User prior to receiving it
from the other party and was
not received from a third
party in breach of that
third party’s obligations of
confidentiality; or (d) was
independently developed by
User without use of another
person’s Confidential
Information.
“Escrow Account” means Client Escrow
Account, Freelancer Escrow
Account, or Fixed-Price
Escrow Account.
“Escrow Instructions” means the
Fixed-Price Escrow
Instructions or the Hourly,
Bonus, and Expense Payment
Agreement with Escrow
Instructions.
“Fixed-Price Contract” means a Service
Contract for which Client is
charged a fixed fee agreed
between a Client and a
Freelancer, prior to the
commencement of a Service
Contract, for the completion
of all Freelancer Services
contracted by Client for
such Service Contract.
“Freelancer Fees” means: (a) for an
Hourly Contract, the amount
reflected in the Hourly
Invoice (the number of hours
invoiced by Freelancer,
multiplied by the hourly
rate charged by Freelancer);
(b) for a Fixed-Price
Contract, the fixed fee
agreed between a Client and
a Freelancer; and (c) any
bonuses or other payments
made by a Client to a
Freelancer.
“Hourly Contract” means a Service
Contract for which Client is
charged based on the hourly
rate charged by Freelancer.
“Hourly Invoice” means the report of
hours invoiced for a stated
period by a Freelancer for
Freelancer Services
performed for a Client.
The term “including” as used herein means
including without
limitation.
“Intellectual Property
Rights” means all patent
rights, copyright rights,
mask work rights, moral
rights, rights of publicity,
trademark, trade dress and
service mark rights,
goodwill, trade secret
rights and other
intellectual property rights
as may now exist or
hereafter come into
existence, and all
applications therefore and
registrations, renewals and
extensions thereof, under
the laws of any state,
country, territory or other
jurisdiction.
“Payment Method” means a valid credit
card issued by a bank
acceptable to Upwork, a bank
account linked to your
Account, a PayPal account, a
debit card, or such other
method of payment as Upwork
may accept from time to time
in our sole discretion.
“Project” means an engagement
for Freelancer Services that
a Freelancer provides to a
Client under a Service
Contract on the Site.
“Staffing Employee” means a Freelancer
enrolled in Upwork Payroll,
accepted for employment by a
Staffing Provider, and
assigned by the Staffing
Provider to provide
Freelancer Services to one
or more Client(s).
“Service Contract” means, as
applicable, (a) the
contractual provisions
between a Client and a
Freelancer governing the
Freelancer Services to be
performed by a Freelancer
for Client for a Project; or
(b) if you use Upwork
Payroll, the contractual
provisions between
Freelancer and the Staffing
Provider for the provision
of services to Client, if
any.
“Substantial Change” means a change to
the terms of the Terms of
Service that reduces your
rights or increases your
responsibilities.
“Upwork App” means the online
platform accessed using
Upwork’s downloaded
application or other
software that enables time
tracking and invoicing,
chat, and screenshot sharing
with other Users.
“Work Product” means any tangible
or intangible results or
deliverables that Freelancer
agrees to create for, or
actually delivers to, Client
as a result of performing
the Freelancer Services,
including, but not limited
to, configurations, computer
programs, or other
information, or customized
hardware, and any
intellectual property
developed in connection
therewith.
Effective April 20, 2018 to May 20, 2018
DownloadTable of Contents
Important note: We
have made some updates to
our Terms
of Service to make them
more clear. For Users
who registered before
the Updated
User
Agreement
was posted on
April 20, 2018, this
User Agreement (below)
remains in effect until May 20,
2018. The Updated
User Agreement is
effective on May 20,
2018 for all Users who
registered before it was
posted and effective
when posted for everyone
else. Please review the
entire Terms of Service
carefully.
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and Upwork Global Inc. (“Upwork”, “
we,” or “us”) and, to the extent expressly stated, our affiliates Upwork Escrow Inc. (“Upwork
Escrow”) and Elance Limited. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.upwork.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”),
all services (except the Freelancer Services), applications and products that are accessible through the Site and all Upwork mobile applications that link to or reference this Agreement (“Site
Services”) whether provided by us or our Affiliates.
This Agreement includes and hereby incorporates by reference the following: Upwork Fee Agreement; Terms of Use; Cookie Policy; Privacy Policy; Freelancer Membership Agreement; Upwork Payroll Agreement; Proprietary Rights Infringement
Reporting Procedures; “Upwork Team” Software License Agreement; API Terms of Use; Upwork Widget Terms of Use; Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions; and Fixed-Price Escrow Instructions, as such agreements
may be in effect and modified by Upwork from time to time (collectively, with this Agreement, the “Terms
of Service”). The Terms of Service are available at www.upwork.com/legal/terms/.
Subject to the conditions set forth herein, Upwork may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of
any amendment that includes a Substantial Change. If the Substantial Change includes an increase to Fees charged by Upwork, Upwork will provide at least 30 days’ advance notice of the change, but may not provide any advance notice
for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each,
as applicable, the “Effective
Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as
revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement
and in Section 23 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 21.4
OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION
WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY
TO THAT ENTITY OR AGENCY.
1.
DIGITAL SIGNATURE
By registering for an Upwork account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service
electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.).
Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
2.
CONSENT TO USE
ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from Upwork or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services,
you give us permission to provide these records to you electronically instead of in paper form.
2.1
YOUR CONSENT AND YOUR
RIGHT TO WITHDRAW
CONSENT
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be
required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is
registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer
Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any
withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive
records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2
KEEPING YOUR ADDRESS AND
EMAIL ADDRESS CURRENT WITH
US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer
Support. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
2.3
HARDWARE AND SOFTWARE YOU
WILL NEED TO USE THE SITE
SERVICES FOR YOUR BUSINESS
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current
Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that
accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records
and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current
Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of
all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum
hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
3.
UPWORK ACCOUNTS
3.1
ACCOUNT ELIGIBILITY
To use the Site and certain Site Services, you must register for an Account. Upwork offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services,
you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and
Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee and Agency Member of a registered Agency Account. You understand that you must comply with any licensing or registration
requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older
who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted
on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of Freelancer Services; and (c) perform your obligations
as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. Upwork reserves the right, in our sole discretion, to refuse, suspend, or revoke your access
to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or
for any other reason or no reason in Upwork’s sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen
or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department
of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items
subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer
accurate, that you will immediately cease using the Site and Site Services.
3.2
ACCOUNT REGISTRATION;
PROFILE
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are a Freelancer, unless you
use the Site solely as an employee and Agency Member of a registered Agency Account, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships
with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness,
accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to
register for more than one Client Account and one Freelancer Account without express written permission from us (except that you may register as an Agency Member of other Accounts as provided below). You agree not to ask or allow
another person to create an Account on your behalf, for your use, or for your benefit.
3.3
IDENTITY VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government
or legal documents that confirm your identity and your ability to represent your business on Upwork, if it is a separate legal entity. You authorize Upwork, directly or through third parties, to make any inquiries necessary to validate
your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
3.4
AGENCY ACCOUNTS
You may create an account through which other authorized Freelancers (each, an “Agency
Member”) may act on your behalf in the roles you assign for your account (an “Agency
Account”). A Freelancer creates an Agency Account on behalf of a business (the “Agency”), which may be the Freelancer as a sole proprietor or a partnership, corporation, or other legal entity the User
controls. The Freelancer that registered the Agency Account may also grant certain account administration privileges for the Agency Account to one or more Agency Members (each, an “Agency
Account Administrator”). Except as otherwise required by applicable law, only the User who registered the Agency Account and the Agency Account Administrators can add or remove Agency Members to or from the Agency Account.
Each Agency Member must have an Account and a Profile. You understand and agree that the Agency may determine the Profile visibility and hourly rate of any of its Agency Members, and you authorize the Agency to do so by becoming an
Agency Member. Each Agency Member must be a User and must be a real person or legally recognized entity. Each Agency Member’s Account Profile must contain the Agency Member’s real name, and Agency Members must comply with all Terms
of Service. Agency Members’ identities will be subject to verification. If any of your Agency Members violate the Terms of Service, it may affect your ability to use the Site. Upon closure of an Agency Account, Upwork may close any
or all related Accounts.
You agree to grant access to the Agency Account, including with respect to any Agency Members, only to Users authorized to act on your behalf and only in accordance with the Terms of Service. Additionally, you agree to be fully responsible
and liable for any action of any Agency Member and any other User who uses the Agency Account, including Agency Account Administrators. You represent that your Agency Members have the authority to accept the Terms of Service on your
behalf and to create a legally binding obligation on your behalf. You understand and agree that an Agency Member may accept and enter into Service Contracts on behalf of the Agency, and that the Agency is responsible and liable for
all Service Contracts accepted by anyone acting as an Agency Member.
Each Agency Member is either an employee or an independent contractor of the Agency, as determined by the Agency. Without limiting the Agency’s obligations described in Section 8.2 (Responsibility for Employees and Subcontractors,
Including Agency Members), the Agency acknowledges and agrees that it assumes all liability for the classification of its Agency Members as employees or independent contractors. The Agency further acknowledges and agrees that the
Agency is responsible for paying its Agency Members. Agency Members acknowledge and agree that their Agency is solely responsible for paying them for work on behalf of the Agency and that such payments will not be made through the
Site.
Your Agency Account (including feedback) and username are transferable only upon Upwork’s approval, at Upwork’s sole discretion.
You understand and agree that Agency Members’ Profiles may display work history that includes work done under the Agency, including after the Agency Member is no longer an Agency Member.
3.5
USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. Each User and any Agency Account Administrator will also be asked to choose the initial username and password for any Agency Account
that is added to the Account (and can change the password for the Agency Account at any time).
You are entirely responsible for safeguarding and maintaining the confidentiality of your Account or Agency Account username and password. You authorize Upwork to assume that any person using the Site with your username and password,
either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or Agency Account or any unauthorized access to your password or the password
of any User of your Account (or any related Agency Account). You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to
do so to use your Account or Agency Account at any time.
3.6
MARKETPLACE FEEDBACK
You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Upwork post composite or compiled feedback about Users, including yourself, on User Profiles
and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score (“
JSS”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that Upwork will make feedback results available to other
marketplace Users, including composite or compiled feedback. Upwork provides this feedback system as a means through which Users can share their opinions publicly and Upwork does not monitor or censor these opinions. You acknowledge
and agree that posted composite or compiled feedback and any JSS relate only to the business advertised in the Freelancer Profile and not to any individual person. You agree not to use the JSS to make any employment, credit, credit
valuation, underwriting, or other similar decision about any other User.
Upwork does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Upwork do so. You may be held legally responsible for damages suffered by other Users or third parties as a result
of your remarks if such remarks are legally actionable or defamatory. Upwork is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is
defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Upwork reserves the right (but is under no obligation) to remove posted feedback or information that,
in Upwork’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify Upwork of any error or inaccurate statement in your feedback results, including the JSS,
and that if you do not do so, Upwork may rely on the accuracy of such information.
4.
PURPOSE OF THE
SITE AND SITE SERVICES
The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Upwork provides the Site Services to Users, including hosting
and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Freelancer Services, a Service Contract is formed directly between such
Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Freelancer), unless you are enrolled in Upwork Payroll. When a User enters a Service Contract, the User uses the Site to engage,
communicate, invoice and pay online.
4.1
ESCROW ACCOUNTS
Upwork Escrow provides escrow services to Users to deliver, hold, or receive payment for an Engagement, and to pay service, membership and payment processing and administration fees to Upwork (“Escrow
Services”). Upwork Escrow is a Delaware corporation and a licensed Internet escrow agent and holds California Department of Business Oversight License No. 963 5086. The Escrow Services are intended for business use, so
you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
Depending on your needs and the applicable Escrow Instructions, Upwork Escrow will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Agreement:
(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for an Engagement, Upwork Escrow will establish and maintain a “Client
Escrow Account” to hold funds for the Client to use to make payments for Engagements, to receive refunds in connection with Engagements, and to make payments to Upwork for payment processing and administration fees.
(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for an Engagement, Upwork Escrow will establish and maintain a “
Freelancer
Escrow Account” for the Freelancer to receive payments for Engagements, withdraw payments, make monthly membership payments and service fees to Upwork, and issue refunds to Clients.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Upwork Escrow will establish and maintain a “Fixed-Price
Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct Upwork Escrow to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Escrow”)
in accordance with the Terms of Service and the applicable Escrow Instructions.
5.
CONTRACTUAL RELATIONSHIP
BETWEEN CLIENT AND
FREELANCER
5.1 SERVICE
CONTRACTS
Unless you use the services described in the Upwork Payroll Agreement (such services, “Upwork
Payroll”), you acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Fixed-Price Escrow Instructions; (b) the Hourly, Bonus and Expense Payment Agreement with Escrow
Instructions; (c) the Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand Upwork’s obligations or restrict Upwork’s rights under the Terms of Service; (d) the terms
in Section 8 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand Upwork’s obligations or restrict Upwork’s rights under the Terms of Service;
and (e) any other contractual provisions accepted by both the Client and the Freelancer, to the extent that the provisions do not, and do not purport to, expand Upwork’s obligations or restrict Upwork’s rights under the Terms of
Service. You acknowledge and agree that Upwork is not a party to any Service Contracts, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship
between Upwork and any Freelancer.
5.2
PAYMENT AGREEMENTS AND ESCROW
INSTRUCTIONS
Fixed-Price Engagements. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Fixed-Price Escrow Instructions.
Hourly Engagements, Bonus Payments, or Expense Payments. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and Upwork Escrow will follow, the
Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
6.
PAYMENT
TERMS
6.1
SERVICE FEE
The fees to use the Site and Site Services are paid solely by the Freelancer. When a Client pays a Freelancer, or when funds related to an Engagement are otherwise released to a Freelancer as required by the applicable Escrow Instructions,
Upwork Escrow will credit the Freelancer Escrow Account for the full amount paid or released, and then subtract and disburse to Upwork a service fee in the amount specified in the
Upwork Fee and ACH
Authorization Agreement (the “Service Fee”). Freelancer agrees to pay Upwork the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including
Payment Protection. Refer to the Upwork Payroll
Agreement for applicable fees to use Upwork Payroll.
6.2
MEMBERSHIP FEES
Freelancers will subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Freelancer Membership
Agreement, as may be revised from time to time upon such notice as may be appropriate.
6.3
NO FEE FOR INTRODUCING OR FOR
FINDING ENGAGEMENTS
Upwork does not introduce Clients to Freelancers and does not help Freelancers secure Engagements. Upwork merely makes the Site Services available to enable Freelancers to do so themselves. Therefore, Upwork does not charge a fee when
a Freelancer finds a suitable Client or finds an Engagement. However, a Client and a Freelancer are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site, as detailed
in Section 7 (Non-Circumvention), below. In addition, Upwork does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.
6.4
DISBURSEMENTS TO FREELANCERS
Under the relevant Escrow Instructions, Upwork Escrow disburses funds that are payable to a Freelancer for the Engagement (less any applicable Upwork fees) to Freelancers within 90 days after the Freelancer Fees are due and payable
from Client (or for amounts less than $100, within 180 days after the Freelancer Fees are due and payable from Client). Freelancer agrees that it will not receive interest or other earnings on the funds held by Upwork Escrow prior
to disbursement to Freelancer.
For Hourly Contracts, funds become payable to Freelancers following the expiration of the dispute period and the security period, unless the Client has any Engagement using Upwork Payroll, in which case there is no dispute period or
security period. For Fixed-Price Contracts, the Freelancer Fees become payable to Freelancers following the expiration of the security period, unless the Client has any Engagement using Upwork Payroll in which case there is no security
period. The security period begins after Client accepts and approves work submitted by Freelancer by clicking the Make a Payment button. Upwork, Upwork Escrow, and Elance Limited may, in their sole discretion, deviate from the typical
billing cycle for Hourly Contracts and charge the Client for any and all Time Logs at any time. To the extent the Escrow Instructions are inconsistent with this paragraph, the Escrow Instructions govern.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the
Site or the Terms of Service, Upwork Escrow may hold the disbursement of the Freelancer Fees. Additionally, Upwork Escrow may also hold the disbursement of the Freelancer Fees if: (a) we require additional information, such as Freelancer’s
tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds
for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of the Terms of Service, Upwork reserves the right to revoke any payments and instruct Upwork Escrow to (and Upwork Escrow will have the right to) hold and reclaim from Upwork Escrow all Freelancer
Fees due to Freelancer (not just the Freelancer Fees from the Service Contract(s) under investigation) unless prohibited by applicable law. In addition, we reserve the right to seek reimbursement from you, and you will reimburse
us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we
receive any chargeback from the Payment Method used by you, or used by your Client if you are a Freelancer. You agree that we have the right to obtain such reimbursement by instructing Upwork Escrow to (and Upwork Escrow will have
the right to) charge an applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining
reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account and revocation of your access to the Site.
6.5
NON-PAYMENT
If Client fails to pay the Freelancer Fees or any other amounts due under the Terms of Service, whether by canceling Client’s credit or debit card, initiating an improper chargeback, or any other means, Upwork may suspend or close
Client’s Account and revoke Client’s access to the Site, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Freelancer Services. Without limiting
other available remedies, Client must pay Upwork upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest
allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Upwork or Upwork Escrow, at our discretion, may set off amounts due
against other amounts received from or held by Upwork or Upwork Escrow for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement
authorities in any resulting investigation or prosecution.
6.6
NO RETURN OF FUNDS
Client acknowledges and agrees that Upwork Escrow will charge Client’s designated Payment Method for the Freelancer Fees: (a) for Fixed-Price Contracts, upon Client’s acceptance and approval of the Freelancer Services, and (b) for
Hourly Contracts, on the Monday after the week in which work was performed. Therefore, and in consideration of the Site Services provided by Upwork and the Escrow Services provided by Upwork Escrow, Client agrees that once Upwork
Escrow charges the Client’s designated Payment Method for the Freelancer Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except as otherwise required by applicable law. Client also
acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank,
or other Payment Method provider to charge back any Freelancer Fees or other Fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service.
If Client initiates a chargeback in violation of this Agreement, Client agrees that Upwork or Upwork Escrow may dispute or appeal the chargeback and institute collection action against Client.
6.7
FORMAL INVOICES AND TAXES
Upwork will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Freelancer Fees. Freelancer will be solely responsible
for determining whether it is required by applicable law to issue any formal invoices for the Freelancer Fees and for issuing any invoices so required. Freelancer will also be solely responsible for determining whether: (a) Freelancer
or Upwork is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Freelancer Fees and remitting any such taxes or charges to the appropriate
authorities on behalf of itself or Upwork, as appropriate; and (b) Upwork is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Upwork of any such requirement and indemnifying Upwork (either
by Upwork, at our sole discretion, offsetting the relevant amount against a future payment of Freelancer Fees to Freelancer or Freelancer reimbursing Upwork for the applicable amount) for any requirement to pay any withholding amount
to the appropriate authorities (including penalties and interest). In the event of an audit of Upwork, Freelancer agrees to promptly cooperate with Upwork and provide copies of Freelancer’s tax returns and other documents as may
be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Upwork.
6.8
PAYMENT METHODS
Clients are charged a fee for payment processing and administration as described in the Upwork Fee and ACH
Authorization Agreement.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Upwork, Upwork Escrow, and Elance Limited to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment
for Services, and to charge Client’s credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by Upwork Escrow. Notwithstanding the foregoing,
credit cards and PayPal accounts in Australia, Canada, the Eurozone, and the United Kingdom will be charged by Elance Limited, an Ireland registered company which is an Affiliate of Upwork.
When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Upwork Escrow or Elance Limited to charge Client’s Payment Method for the
Freelancer Fees. When Client approves or is deemed to have approved a Time Log for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Upwork Escrow or Elance Limited to charge Client’s Payment Method
for the Freelancer Fees.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the
Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client
represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service
cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
6.9
US DOLLARS AND FOREIGN
CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Site may display foreign
currency conversion rates that Upwork, Upwork Escrow or other Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions.
Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion
and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign
currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and either Upwork, Upwork Escrow, or another Affiliate does not support the foreign currency or Client does not authorize
the conversion of such payment at the foreign currency conversion rate displayed on the Site, Upwork Escrow or an Affiliate will charge Client’s Payment Method in U.S. Dollars and Client’s Payment Method provider will convert the
payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency
conversion is involved. Client’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client’s sole risk. Upwork, Upwork Escrow, and other Affiliates are not responsible for currency fluctuations
that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Upwork, Upwork Escrow, and other Affiliates are not responsible for currency fluctuations that occur when receiving or sending
payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.
6.10
LIMITED PAYMENT PROTECTION
In the rare event that a Client does not make payment for legitimate services performed by a Freelancer, Upwork will provide limited payment protection to the Freelancer as detailed in this Section 6.10 (“Payment
Protection”) as a membership benefit to foster fairness, reward loyalty, and encourage the Freelancer to continue to use the Site and Site Services for their business needs.
Upwork only provides Payment Protection to Freelancers working on Hourly Contracts and only if all of requirements of the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions and the following criteria are met: (a)
Client has a verified Payment Method; (b) the time represented is captured online using the Upwork Team Software; (c) the Freelancer Services performed and recorded in the Time Log pertain directly to the Service Contract; and (d)
each Time Log is annotated with descriptions of the Freelancer Services performed, demonstrating Service Contract compliance. Upwork determines whether the foregoing criteria have been met in our sole discretion. Without limiting
the foregoing, Payment Protection does not apply to: (w) Freelancers, Freelancer Services, or Service Contracts violating this Agreement or the other Terms of Service; (x) Freelancers that are aware of or complicit in another User’s
violation of this Agreement or the other Terms of Service; (y) Freelancers enrolled in Upwork Payroll; or (z) Freelancers that are suspected (in Upwork’s sole discretion) of actual fraudulent activities or abuse of this Payment Protection.
Freelancer hereby irrevocably assigns to Upwork the right to recover from the Client any amounts that Upwork or our Affiliates provide to the Freelancer in connection with the Payment Protection membership benefit.
7.
NON-CIRCUMVENTION
You acknowledge and agree that a substantial portion of the compensation Upwork receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service
Fee”). Upwork only receives this Service Fee when a Client and a Freelancer pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site
(the “Non-Circumvention
Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Upwork
Relationship”). You may opt-out of this obligation with respect to each Client-Freelancer relationship only if Client or prospective Client or Freelancer pays Upwork for each such relationship:
(a) an “Opt-Out
Fee” computed to be the greater of the following amounts:
(i) $2,500; or
(ii) 15% of the cost to the Client of the services to be performed in the Upwork Relationship during the Non-Circumvention Period, as estimated in good faith by the prospective Client; or
(iii) all Service Fees that would be earned by Upwork from the Upwork Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Freelancer from Client during the most recent normalized 8-week
period, or during such shorter period as data is available to Upwork; and
(b) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client first makes payment to the subject Freelancer until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to optoutfee@upwork.com.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
You agree to notify Upwork immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please
submit a confidential report to Upwork by sending an email message to: policy-reports@upwork.com.
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay
the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
8.
SERVICE
CONTRACT TERMS
Unless otherwise expressly agreed to in writing by both Users, and except for Freelancer Services using Upwork Payroll, the default terms and conditions of the Service Contract that a Freelancer enters directly with a Client when the
Freelancer agrees to provide Freelancer Services to the Client are as set forth in this Section 8. If Upwork Payroll is used for the Engagement, then only Sections 8.7 and 8.8 of this Section 8 apply. Users may agree between them
on any additional or different terms for their Service Contract as long as such terms do not and do not purport to affect the rights or responsibilities of Upwork or violate the Terms of Service. Upwork is not a party to any Service
Contract by or between Users.
Users agree that the terms concerning the Service Contract described on the Site, including Freelancer Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of the other before making
changes to the Service Contract by adding additional or different milestones or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes
by terminating the Service Contract (see Section 8.5) or accept such changes by continuing to work on the Service Contract.
8.1
SERVICES
Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled
solely by Freelancer, which is engaged by Client as an independent contractor.
8.2
RESPONSIBILITY FOR EMPLOYEES
AND SUBCONTRACTORS,
INCLUDING AGENCY MEMBERS
To ensure accurate billing, work billed for Hourly Contracts under a Freelancer’s Account must be performed by the Freelancer that has the Account. With an Agency Account, the Agency may bill for hourly work done by Agency Members.
If a User subcontracts with or employs third parties to perform Freelancer Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance
with all applicable laws and regulations. As used in this Agreement, the term “Delegee” refers to any employee, independent contractor, or agent of a User, including an Agency Member, that the User engages to perform
any work on its behalf under a Service Contract. Regardless of whether a User has Delegees, the User remains responsible for all services performed under the User’s Service Contracts, including ensuring that the services comply with
the Terms of Service (including confidentiality and intellectual property obligations). Each Agency specifically acknowledges and agrees that Agency Members have the authority to bind the Agency to Service Contracts entered into
by Agency Members on behalf of the Agency.
Freelancer, Agency, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of Upwork or Client. Agency, Delegee, and Freelancer represent, warrant, and covenant that: (a) Agency
and, if applicable, each other User is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers’ compensation insurance, contributions, and expenses of Delegees; (b) neither Upwork nor Client
has the right or power to supervise or control Delegees; and (c) no Delegees of any Agency or other User will have any claim under this Agreement or the other Terms of Service for overtime pay, sick leave, holiday or vacation pay,
retirement benefits, worker’s compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from Upwork or Client.
With respect to Delegees, Upwork merely provides the platform for Agency or Freelancer to communicate and share information with Clients and, if they are Users, with Delegees. Agency, Delegee, and Freelancer understand and agree that
the contract terms, pay rate, work hours, service dates and working conditions will be established by the Agency, Freelancer, and/or Client and not by Upwork. Agency, Delegee, and Freelancer acknowledge and agree that Delegees are
not employees or independent contractors of Upwork, and further acknowledge and agree that they will not be providing any services to Upwork (directly or indirectly) while employed or engaged by the Agency or another User.
Agency, Delegee, and Freelancer acknowledge and agree that Upwork does not, in any way, supervise, direct, or control Delegees; Upwork does not set Delegees’ contract terms (including determining whether the contract will be set at
an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; Upwork will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and Upwork does
not provide the premises at which the Delegees will perform the work.
8.3
CLIENT PAYMENTS AND BILLING
For Hourly Contracts, Client becomes obligated for Freelancer Fees on a weekly basis. For Fixed-Price Contracts, Client becomes obligated immediately upon sending a Fixed-Price Contract offer or upon activating any additional milestone.
8.4
DISPUTE RESOLUTION
With respect to disputes arising between Clients and Freelancers, you agree to abide by the dispute resolution provisions set forth in the Escrow Instructions that apply to your particular Service Contract.
8.5
TERMINATION OF A SERVICE
CONTRACT
Under Hourly Contracts, either Client or Freelancer has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion
of the Freelancer Services, in the event of a material breach, or with the consent of the other party. Except as required by law, Client remains obligated to pay the Freelancer Fees for any Freelancer Services provided prior to termination
of the Hourly Contract.
Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Freelancer, the Service Contract does not terminate until the Freelancer
Services are completed. However, either Client or Freelancer has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated,
Client does not have the right to recover any payments already released to Freelancer from the escrow account for the Engagement.
8.6
INTELLECTUAL PROPERTY RIGHTS
CERTAIN
DEFINED TERMS
The following capitalized terms have the following meanings:
“Background
Technology” means all Inventions developed by Freelancer other than in the course of providing Freelancer Services to Client under the Service Contract and all Inventions that Freelancer incorporates into Work Product.
“Client
Materials” means requests, intellectual property, and any other information or materials that Client provides to Freelancer for Freelancer to perform Freelancer Services.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and
all Intellectual Property Rights therein.
BACKGROUND
TECHNOLOGY
Freelancer will disclose in the Engagement Terms any Background Technology which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Background
Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Freelancer will separately provide, with each delivery of Work Product to Client, a third-party bill
of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated
version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding
the foregoing, unless otherwise agreed in the Engagement Terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will
create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined
with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
LICENSE
TO
BACKGROUND TECHNOLOGY
Upon Freelancer’s receipt of full payment from Client for delivery of Work Product, Freelancer hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights
to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use,
sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product,
the grant described herein applies only to the portion of Work Product delivered.
CLIENT
MATERIALS
Client grants Freelancer a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Freelancer Services under the applicable Service
Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written
request, Freelancer will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained
in or on Freelancer’s premises, systems, or any other equipment or location otherwise under Freelancer’s control. Within ten days of such request from Client, Freelancer agrees to provide written certification to Client that Freelancer
has returned or destroyed all Client Materials and Work Product as provided in this subsection.
OWNERSHIP
OF WORK PRODUCT AND
INTELLECTUAL PROPERTY
Upon Freelancer’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed
to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to
Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual
Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery
of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
LICENSE
TO
OR WAIVER OF OTHER RIGHTS
If Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment
from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights
to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import,
offer for sale and exercise any and all such rights. If Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer’s receipt of payment from Client, unconditionally
and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent
to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
ASSISTANCE
Freelancer will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating
to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Freelancer’s signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Client
and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Freelancer.
IMMUNITY
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either
directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such
filing is made under seal.
8.7
WORKER CLASSIFICATION
Client is responsible and assumes all liability for determining whether Freelancers are independent contractors or employees and engaging them accordingly; Upwork disclaims any liability for such determination or the related Engagement.
The Terms of Service do not create a partnership or agency relationship between Users. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Upwork. For Service Contracts
classified as independent contractor relationships, Client may not require an exclusive relationship. A Freelancer classified as an independent contractor is free at all times to provide Freelancer Services to persons or businesses
other than Client, including any competitor of Client.
For Freelancer Services classified as employment, Client must sign up for and participate in the Upwork Payroll program made available on the Site, with employment services provided as discussed in Section 8.8 (Employment Services), unless Client pays the Opt-Out Fee. For all purposes with Upwork Payroll, the
employer of the Freelancer will be the third-party Staffing Provider and not Upwork under any circumstances.
8.8 EMPLOYMENT
SERVICES
If a Client will receive services from a Freelancer it has classified as an employee, then the Client agrees that the Upwork Payroll Agreement applies, and Client agrees to enroll in Upwork Payroll for each such relationship. In this
case, Upwork’s third-party staffing vendor (the “Staffing
Provider”) will hire the Freelancer at the request of Client and assign the Freelancer to work for Client, as described in the Upwork Payroll Agreement.
If a Client and a Freelancer decide to use Upwork Payroll, then Freelancer acknowledges that Freelancer has agreed to become a Payroll Employee, employed by the Staffing Provider and assigned to Client, based on Freelancer’s own determination
that Client offers work acceptable and appropriate for Freelancer on terms that are acceptable to Freelancer. Freelancer agrees to complete such documents as the Staffing Provider may legally and reasonably require in connection
with the employer-employee relationship, including, without limitation, an authorization for a background check, an employment agreement or offer letter, applicable tax forms, and an I-9 or other documentation to establish authorization
for employment in the applicable country (collectively, the “Employment
Paperwork”). Freelancer will not become an employee of the Staffing Provider and will not start work until all Employment Paperwork has been completed and returned to the Staffing Provider, and the Staffing Provider has
accepted Freelancer as an employee. Once Freelancer becomes an employee of the Staffing Provider, unlike independent contractor engagements, Freelancer understands that he/she will not have the right to control the manner and means
by which he/she works and will be subject to the Staffing Provider’s policies and requirements.
With respect to Payroll Employees, Upwork merely provides the platform for Freelancer to communicate and share information with the Staffing Provider and Client. Freelancer understands and agrees that the pay rate, work hours, employment
dates and working conditions will be established or confirmed by the Staffing Provider and/or Client and not by Upwork, and that Freelancer will not have any contract on the Upwork Site or with Upwork regarding such employment terms;
any job posting, proposal, pay rate or other information in the platform is solely for the purpose of enabling the Payroll Employee to communicate with the Staffing Provider and the Client. Freelancer acknowledges and agrees that
he/she is not an employee of Upwork, and that he/she will not be providing any services to Upwork (directly or indirectly) while employed by the Staffing Provider unless Upwork is expressly designated in writing as the Client.
Freelancer understands and agrees that Freelancer is responsible for accurately recording Freelancer’s work hours and reporting all hours worked to the Staffing Provider. By completing and/or submitting a Time Log, Freelancer verifies
that the hours worked reflected in the Time Log are accurately recorded and include all hours worked, including but not limited to any overtime hours and any paid rest breaks that Freelancer is authorized to take by the Staffing
Provider and/or by applicable law. Any provision of this Agreement that would conflict with applicable law regarding the timing or amount of wage payments shall not apply to any Payroll Employee.
Freelancer agrees to personally provide all services for any contract under which the Freelancer is working as a Payroll Employee. Freelancer acknowledges that Freelancer, and not Upwork or the Staffing Provider, will be responsible
for timely and professionally completing all work that he or she is assigned while working as a Payroll Employee.
9.
RECORDS
OF COMPLIANCE
Users will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement; any Service Contract, including, without limitation, their respective payment obligations and compliance
with tax and employment laws; and any Upwork Payroll Agreement, and (2) provide copies of such records to Upwork upon request. Nothing in this subsection requires or will be construed as requiring Upwork to supervise or monitor a
User’s compliance with this Agreement, the other Terms of Service, or a Service Contract.
10.
RELATIONSHIP WITH UPWORK
Upwork is not a party to the dealings between Client and Freelancer, including posts, proposals, screening, selection, contracting, and performance of Freelancer Services. Upwork does not introduce Freelancers to Clients or help Freelancers
find Engagements. Upwork merely makes the Site Services available to enable Freelancers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Freelancers
for themselves. Upwork does not, in any way, supervise, direct, or control Freelancer or Freelancer’s work. Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if
the Freelancer Fees will be set at an hourly or fixed rate for a Service Contract. Upwork will not provide Freelancer with training or any equipment, labor, or materials needed for a particular Service Contract. Upwork does not provide
the premises at which the Freelancer will perform the work. Upwork makes no representations about, and does not guarantee the quality, safety, or legality of, the Freelancer Services; the truth or accuracy of Freelancer’s listings
on the Site; the qualifications, background, or identities of Users; the ability of Freelancers to deliver the Freelancer Services; the ability of Clients to pay for the Freelancer Services; or that a Client or Freelancer can or
will actually complete a transaction.
Upwork does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Freelancer, each of which is solely responsible for all tax returns and payments required to be filed with or made to any
federal, state, or local tax authority in any nation with respect to Freelancer’s performance, and Client’s acceptance, of Freelancer Services.
Upwork is not required to and may not verify any feedback or information given to us by Freelancers or Clients, nor does Upwork perform background checks on Freelancers or Clients.
You
hereby acknowledge and agree
that Upwork may provide
information on the Site
about a Freelancer or
Client, such as feedback,
composite feedback,
including a strength or risk
score, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on data that
Freelancers or Clients
voluntarily submit to Upwork
and does not constitute and
will not be construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
11.
THIRD-PARTY BENEFICIARY
Users appoint Upwork as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, Upwork hereunder. For example, Section 5.1(c) and Section 5.1(d) of this
Agreement prohibit certain terms in any Service Contract and Upwork is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Users further agree that Upwork has the right to take such actions with respect
to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and Upwork, except and solely to the extent expressly
stated in this Agreement.
12.
COMMUNICATIONS FROM YOU
TO UPWORK
All notices to Upwork or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Legal, 441 Logue Ave., Mountain
View, CA 94043; or (c) in writing via email to
legalnotices@upwork.com. All such notices are deemed effective upon receipt by Upwork. Upwork does not accept service of any legal process by email or mail; all such service should occur by hand
delivery on Upwork or its registered agent for service of process.
13.
UPWORK’S ROLE
13.1
SERVICE CONTRACTS
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Freelancers; (b) Upwork is not a party to any Service Contracts between Clients and Freelancers; (c) you are
not an employee of Upwork, and Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Upwork will not have any liability or obligations under or related to Service Contracts for any
acts or omissions by you or other Users; (e) Upwork has no control over Freelancers or the Freelancer Services offered or rendered by Freelancers; and (f) Upwork makes no representations as to the reliability, capability, or qualifications
of any Freelancer or the quality, security, or legality of any Freelancer Services, and Upwork disclaims any and all liability relating thereto.
14.
LICENSES AND THIRD-PARTY
CONTENT
14.1
SITE LICENSE AND INTELLECTUAL
PROPERTY RIGHTS
Subject to and conditioned on compliance with the Terms of Service, Upwork grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access
(or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available.
You agree not to use the Site or Site Services for offering any goods or services other than Freelancer Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare
derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without Upwork’s prior written consent. You must not use any content of the Site or Site
Services on any other website or in a networked computer environment for any purpose except your own viewing without Upwork’s prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing
by Upwork. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the
Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the
Site Services. Upwork and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The Upwork logos and names are trademarks of Upwork and may
be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement,
nothing in the Terms of Service confers any license under any of Upwork’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
14.2
USER CONTENT LICENSE
When you post User Content on the Site or through the Site Services or provide Upwork with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified
below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and
privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that Upwork may exercise the rights to your User
Content granted under the Terms of Service without any liability or obligation for any payment.
You retain all ownership rights in any User Content you post on Upwork. To the extent permitted by applicable law, you also grant to Upwork and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual,
irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and
your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site and Upwork’s (and our
successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant
each User a non-exclusive license to access your User Content through the Site and to use, reproduce, distribute, display, and perform such User Content to the extent permitted through the normal functionality of the Site and subject
to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law.
Notwithstanding the foregoing paragraph, Upwork will only use or disclose User Content you post to any non-public area of the Site to the extent necessary to provide Site Services to you as further described in our Privacy Policy.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant Upwork and our successors and Affiliates
the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your
disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Upwork under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties,
and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission,
Upwork does not waive any rights to use similar or related ideas known or developed by Upwork or obtained from sources other than you.
14.3
UNAUTHORIZED ACCESS AND USE;
SITE INTERFERENCE; MALICIOUS
SOFTWARE
The Site contains robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual
content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately
large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code
that is part of the Site, or any services that are offered on the Site without the prior express written permission of Upwork and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation
of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or
copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security
or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology
or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that
is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt
data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of Upwork or any third party
14.4
THIRD-PARTY VERIFICATION
The Site makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that
of the respective author(s) or distributor(s) and not of Upwork. Upwork neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Upwork’s
authorized employees acting in their official capacities.
14.5
LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their
licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and
agree that Upwork is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding
if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links
and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
14.6
MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the
Site.
14.7
SITE UPDATES
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation,
“
Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular
features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will
be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. Upwork reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without
notice. You agree Upwork will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
15.
CONFIDENTIAL INFORMATION
15.1
CONFIDENTIALITY
To the extent a Client or Freelancer provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential
Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential
Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services (including, without limitation, the storage or transmission of Confidential Information
on or through the Site for use by Freelancer); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services. A disclosure of information
will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or
to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
15.2
RETURN
If and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Client’s or Freelancer’s written request (which may be made at any time at Client’s or Freelancer’s
sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems,
or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection
within ten days after the receipt of disclosing party’s written request for such certification.
15.3
PUBLICATION
Without limiting Section 15.1 (Confidentiality), Client, Freelancer, and Upwork will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Freelancer
Services for a Services Contract.
16.
WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. UPWORK MAKES NO EXPRESS REPRESENTATIONS
OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPWORK DISCLAIMS ALL EXPRESS
AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR
ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 20 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST UPWORK WITH RESPECT TO
ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
17.
LIMITATION OF LIABILITY
Upwork is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL UPWORK, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF UPWORK, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER
FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY UPWORK WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED
AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
18.
RELEASE
In addition to the recognition that Upwork is not a party to any contract between Users, you hereby release Upwork, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims,
demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes,
for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the
handling of certain disputes between Users are discussed in subsection 8.4 (Dispute Resolution).
TO THE
EXTENT APPLICABLE, YOU
HEREBY WAIVE THE PROTECTIONS
OF CALIFORNIA CIVIL CODE §
1542 (AND ANY ANALOGOUS LAW
IN ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not apply to a claim that Upwork failed to meet our obligations under the Terms of Service.
19.
INDEMNIFICATION
You will indemnify, defend, and hold harmless Upwork, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified
Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit,
proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through
use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor; the classification of Upwork as an employer or
joint employer of Freelancer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime
pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure
to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual
Property Rights or allegations thereof to the extent caused by you or your agents.
20.
AGREEMENT TERM AND
TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless
both you and Upwork expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination
of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to legalnotices@upwork.com. If you are using Upwork Payroll, you must legally terminate your relationship with Client or Freelancer, as applicable, before terminating this Agreement. In the event you properly terminate
this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement
and the other Terms of Service until all such Engagements have closed on the Site; (b) Upwork will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User;
and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to Upwork for any Site Services and to any Freelancers
for any Freelancer Services. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or Upwork
from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing
survive termination of this Agreement for any reason.
Without limiting Upwork’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter
or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion,
that your actions may cause legal liability for you, our Users, or Upwork or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed,
you may not use the Site under the same Account or a different Account or reregister under a new Account without Upwork’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim
available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
Without limiting Upwork’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed Upwork or our Affiliates under the Terms of Service, you must pay Upwork, and you authorize
Upwork or its Affiliate to charge you, for all fees owed to Upwork and our Affiliates and reimburse Upwork for the Opt-Out Fee, if applicable, all losses and costs (including any and all time of Upwork’s employees) and reasonable
expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties
and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, Upwork will retain this information along with all your
previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which Upwork will have
no liability whatsoever.
20.1
ENFORCEMENT OF AGREEMENT
Upwork has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service
or violated our rights or those of another party. Without limiting Upwork’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further
access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that
your actions may cause legal liability for you, other Users, or Upwork.
20.2
CONSEQUENCES OF AGREEMENT
TERMINATION
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Freelancer Services performed prior to the Effective Date of the termination or thereafter for any Service Contracts
executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes Upwork to charge to its Payment Method pursuant to Section 6 (Payment Terms). Subject to the applicable
Dispute Resolution Procedures, Upwork will pay Freelancer, in accordance with the provisions of Section 6 (Payment Terms) for all time recorded in the Time Logs incurred prior to the Effective Date of the termination or thereafter
for any Service Contracts executed before termination of this Agreement.
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill
of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows:
IF UPWORK DECIDES TO
SUSPEND OR CLOSE YOUR
ACCOUNT, UPWORK HAS THE
RIGHT BUT NOT THE OBLIGATION
TO: (A) NOTIFY OTHER USERS
THAT HAVE ENTERED INTO
SERVICE CONTRACTS WITH YOU
TO INFORM THEM OF YOUR
SUSPENDED OR CLOSED ACCOUNT
STATUS, AND (B) PROVIDE
THOSE USERS WITH A SUMMARY
OF THE REASONS FOR YOUR
ACCOUNT SUSPENSION OR
CLOSURE.
20.3
SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force
and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement
and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
21.
CANCELLATIONS, REFUNDS, AND
DISPUTES
21.1
DISPUTE PROCESS AND SCOPE
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract.
If a dispute arises between you and Upwork or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Upwork, and our Affiliates agree to resolve any claim, dispute, or controversy that arises
out of or relates to this Agreement, the other Terms of Service, your relationship with Upwork (including any claimed employment with Upwork or one of its Affiliates or successors), the termination of your relationship with Upwork,
or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the
Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from Upwork or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection,
privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in
any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee
benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes
or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Upwork or the termination of that relationship. Only with respect to
the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded
from the coverage of the Arbitration Provision.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
21.2
CHOICE
OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides.
21.3
INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify Upwork of the Claim at Attn: Legal, 441 Logue Ave., Mountain View, CA 94043 or by email to legalnotices@upwork.com, and Upwork agrees to provide to you a
notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim,
and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from Upwork must include pertinent account information, a brief description of the Claim, and Upwork’s contact
information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and Upwork will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if
successful, will avoid the need for further action.
21.4
MANDATORY BINDING ARBITRATION
AND CLASS ACTION/JURY TRIAL
WAIVER (DOES NOT APPLY TO
USERS LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration
Provision”) applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Upwork, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS.
JAMS may be contacted at
www.jamsadr.com.
A.
SCOPE OF ARBITRATION
AGREEMENT AND CONDUCT OF
ARBITRATION
Arbitration as provided in this Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration
Provision”) is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with Upwork ends.
This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration,
either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then
in effect for JAMS. Notwithstanding the foregoing, any Claims by Freelancers that allege employment or worker classification claims will be conducted within 25 miles of where the Freelancer is located in accordance with the JAMS
Employment Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found atwww.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The parties agree that any party will have the right to appear at the arbitration
by telephone and/or video rather than in person.
You and Upwork will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Freelancer will pay JAMS arbitration fees only to the extent
those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. The arbitrator must follow applicable law and may award only those remedies
that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between the Company and you to which you are a party that is or was already pending in a state or federal court before the expiration of your opt-out period. This Arbitration
Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either you or Upwork may apply to a court of competent jurisdiction for provisional injunctive relief
in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter.
Regardless of any other terms of this Arbitration Provision, a claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the claim
notwithstanding the existence of this agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor,
or the National Labor Relations Board. Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust
administrative remedies before making a claim in arbitration, if any.
B.
INTERPRETATION AND
ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide,
all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion
of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate,
including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration
Provision is deemed to be unenforceable, you and Upwork agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
C. CLASS
ACTION AND JURY TRIAL WAIVER
This
arbitration provision
affects your ability to
participate in class,
collective or representative
actions. Both you and Upwork
agree to bring any dispute
in arbitration on an
individual basis only, and
not on a class, collective,
or representative basis on
behalf of others. There will
be no right or authority for
any dispute to be brought,
heard or arbitrated as a
class, collective,
representative or private
attorney general action, or
as a member in any such
class, collective,
representative or private
attorney general proceeding
(“Class Action Waiver”). The
Class Action Waiver does not
prevent you from bringing a
Claim in arbitration as a
private attorney general
solely on your own behalf
and not on behalf of others.
Notwithstanding any other
portion of this Arbitration
Provision or the JAMS Rules,
the arbitrator will have
authority to hear any Claim
on a class, collective, or
representative basis if,
only if, and only to the
extent that, the arbitrator
determines that the waiver
of such class, collective,
or representative Claim is
unenforceable. You and
Upwork agree that you will
not be retaliated against,
disciplined or threatened
with discipline as a result
of exercising any rights
under Section 7 of the
National Labor Relations Act
by filing or participating
in a class, collective or
representative action in any
forum. However, Upwork may
lawfully seek enforcement of
this arbitration provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class,
collective or representative
actions or claims.
D. RIGHT
TO OPT OUT OF ARBITRATION
AND CLASS ACTION/JURY TRIAL
WAIVER.
You
may opt out of the foregoing
arbitration and class
action/jury trial waiver
provision of this Agreement
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site.
To opt out, you must send a written notification to Upwork at Attn: Legal, 441 Logue Ave., Mountain View, CA 94043 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone
number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class
action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to legalnotices@upwork.com.
22.
GENERAL
22.1
ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Upwork relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous
discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms
of Service are included for ease of reference only and have no binding effect. Even though Upwork drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service.
If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Upwork because of the authorship of any provision of the Terms of
Service.
22.2
SIDE AGREEMENTS
Notwithstanding subsection 22.1 (Entire Agreement), Clients and Freelancers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements,
assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand Upwork’s obligations or restrict Upwork’s rights
under the Terms of Service.
22.3
COMPLIANCE
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations,
including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
22.4
MODIFICATIONS
No modification or amendment to the Terms of Service will be binding upon Upwork unless in a written instrument signed by a duly authorized representative of Upwork. For the purposes of this subsection, a written instrument will expressly
exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 22.4 (Modifications) does not apply to amendments to the Terms of Service posted by Upwork to the Site from time to
time.
22.5
NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues
an express written waiver, signed by a duly authorized representative of such party.
22.6
ASSIGNABILITY
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Upwork’s prior written consent in the form of a written instrument signed by a duly authorized representative of Upwork (and, for the
purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). Upwork may freely assign this Agreement or the other Terms of
Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and
permitted assigns of the parties.
22.7
SEVERABILITY
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to
the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the
maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other
jurisdiction or of any other provision in any jurisdiction.
22.8
FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures,
strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance
of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day
notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate, except as provided in Section 20.3.
22.9
PREVAILING LANGUAGE AND
LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the
United States. Upwork makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible
for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United
States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose
of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including
services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site;
or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in
the United States.
23.
DEFINITIONS
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Upwork.
“Client” means any authorized User utilizing the Site to seek and/or obtain Freelancer Services from another User. From time to time, Upwork may act as a Client, and the terms and conditions of this Agreement applicable
to Clients will apply to Upwork when Upwork acts in this way.
“Client
Deliverables” means requests, intellectual property, and any other information or materials that a Freelancer receives from a Client to perform Freelancer Services.
“Confidential
Information” means Client Deliverables, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Freelancer Services,
regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission
of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving
it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Engagement” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site.
“Escrow
Account” means Client Escrow Account, Freelancer Escrow Account, or Fixed-Price Escrow Account.
“Escrow
Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price
Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted
by Client for such Service Contract.
“Freelancer” means any authorized User utilizing the Site to advertise and provide Services to Clients.
“Freelancer
Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract.
“Freelancer
Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Freelancer in the Time Logs, multiplied by the hourly rate set by the Freelancer; (b) for a Fixed-Price Contract, the fixed fee
agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client.
“Freelancer
Services” means all services performed for or delivered to Clients by Freelancers.
“Hourly
Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Freelancer.
“Intellectual
Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property
rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment
Method” means a valid credit card issued by a bank acceptable to Upwork, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Upwork may accept from time to time in
our sole discretion.
“Payroll
Employee” means a Freelancer enrolled in Upwork Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Freelancer Services to one or more Client(s).
“Service
Contract” means, as applicable, (a) the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for an Engagement; or (b) if you use Upwork
Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client, if any; and, in each case, the additional agreements referenced in Section 5.1 (Service Contracts).
“Substantial
Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Time
Logs” means the report of hours recorded for a stated period by a Freelancer for the Freelancer Services performed for a Client.
“Upwork
Team Software” means the online platform accessed using Upwork’s downloaded team software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“User
Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to Upwork.
“Work
Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to,
configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
24.
CONTACTING US
If you have questions or need assistance, please contact Customer Support.
Effective September 13, 2016 to April 20, 2018
DownloadTable of Contents
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and Upwork Global Inc. (“Upwork”, “
we,” or “us”) and, to the extent expressly stated, our affiliates Upwork Escrow Inc. (“Upwork
Escrow”) and Elance Limited. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.upwork.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”),
all services (except the Freelancer Services), applications and products that are accessible through the Site and all Upwork mobile applications that link to or reference this Agreement (“Site
Services”) whether provided by us or our Affiliates.
This Agreement includes and hereby incorporates by reference the following: Upwork Fee Agreement; Terms of Use; Cookie Policy; Privacy Policy; Freelancer Membership Agreement; Upwork Payroll Agreement; Proprietary Rights Infringement
Reporting Procedures; “Upwork Team” Software License Agreement; API Terms of Use; Upwork Widget Terms of Use; Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions; and Fixed-Price Escrow Instructions, as such agreements
may be in effect and modified by Upwork from time to time (collectively, with this Agreement, the “Terms
of Service”). The Terms of Service are available at www.upwork.com/legal/terms/.
Subject to the conditions set forth herein, Upwork may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of
any amendment that includes a Substantial Change. If the Substantial Change includes an increase to Fees charged by Upwork, Upwork will provide at least 30 days’ advance notice of the change, but may not provide any advance notice
for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each,
as applicable, the “Effective
Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as
revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement
and in Section 23 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 21.4
OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION
WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY
TO THAT ENTITY OR AGENCY.
1.
DIGITAL SIGNATURE
By registering for an Upwork account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service
electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.).
Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
2.
CONSENT TO USE
ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from Upwork or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services,
you give us permission to provide these records to you electronically instead of in paper form.
2.1
YOUR CONSENT AND YOUR
RIGHT TO WITHDRAW
CONSENT
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be
required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is
registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer
Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any
withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive
records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2
KEEPING YOUR ADDRESS AND
EMAIL ADDRESS CURRENT WITH
US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer
Support. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
2.3
HARDWARE AND SOFTWARE YOU
WILL NEED TO USE THE SITE
SERVICES FOR YOUR BUSINESS
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current
Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that
accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records
and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current
Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of
all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum
hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
3.
UPWORK ACCOUNTS
3.1
ACCOUNT ELIGIBILITY
To use the Site and certain Site Services, you must register for an Account. Upwork offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services,
you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and
Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee and Agency Member of a registered Agency Account. You understand that you must comply with any licensing or registration
requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older
who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted
on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of Freelancer Services; and (c) perform your obligations
as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. Upwork reserves the right, in our sole discretion, to refuse, suspend, or revoke your access
to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or
for any other reason or no reason in Upwork’s sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen
or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department
of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items
subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer
accurate, that you will immediately cease using the Site and Site Services.
3.2
ACCOUNT REGISTRATION;
PROFILE
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are a Freelancer, unless you
use the Site solely as an employee and Agency Member of a registered Agency Account, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships
with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness,
accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to
register for more than one Client Account and one Freelancer Account without express written permission from us (except that you may register as an Agency Member of other Accounts as provided below). You agree not to ask or allow
another person to create an Account on your behalf, for your use, or for your benefit.
3.3
IDENTITY VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government
or legal documents that confirm your identity and your ability to represent your business on Upwork, if it is a separate legal entity. You authorize Upwork, directly or through third parties, to make any inquiries necessary to validate
your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
3.4
AGENCY ACCOUNTS
You may create an account through which other authorized Freelancers (each, an “Agency
Member”) may act on your behalf in the roles you assign for your account (an “Agency
Account”). A Freelancer creates an Agency Account on behalf of a business (the “Agency”), which may be the Freelancer as a sole proprietor or a partnership, corporation, or other legal entity the User
controls. The Freelancer that registered the Agency Account may also grant certain account administration privileges for the Agency Account to one or more Agency Members (each, an “Agency
Account Administrator”). Except as otherwise required by applicable law, only the User who registered the Agency Account and the Agency Account Administrators can add or remove Agency Members to or from the Agency Account.
Each Agency Member must have an Account and a Profile. You understand and agree that the Agency may determine the Profile visibility and hourly rate of any of its Agency Members, and you authorize the Agency to do so by becoming an
Agency Member. Each Agency Member must be a User and must be a real person or legally recognized entity. Each Agency Member’s Account Profile must contain the Agency Member’s real name, and Agency Members must comply with all Terms
of Service. Agency Members’ identities will be subject to verification. If any of your Agency Members violate the Terms of Service, it may affect your ability to use the Site. Upon closure of an Agency Account, Upwork may close any
or all related Accounts.
You agree to grant access to the Agency Account, including with respect to any Agency Members, only to Users authorized to act on your behalf and only in accordance with the Terms of Service. Additionally, you agree to be fully responsible
and liable for any action of any Agency Member and any other User who uses the Agency Account, including Agency Account Administrators. You represent that your Agency Members have the authority to accept the Terms of Service on your
behalf and to create a legally binding obligation on your behalf. You understand and agree that an Agency Member may accept and enter into Service Contracts on behalf of the Agency, and that the Agency is responsible and liable for
all Service Contracts accepted by anyone acting as an Agency Member.
Each Agency Member is either an employee or an independent contractor of the Agency, as determined by the Agency. Without limiting the Agency’s obligations described in Section 8.2 (Responsibility for Employees and Subcontractors,
Including Agency Members), the Agency acknowledges and agrees that it assumes all liability for the classification of its Agency Members as employees or independent contractors. The Agency further acknowledges and agrees that the
Agency is responsible for paying its Agency Members. Agency Members acknowledge and agree that their Agency is solely responsible for paying them for work on behalf of the Agency and that such payments will not be made through the
Site.
Your Agency Account (including feedback) and username are transferable only upon Upwork’s approval, at Upwork’s sole discretion.
You understand and agree that Agency Members’ Profiles may display work history that includes work done under the Agency, including after the Agency Member is no longer an Agency Member.
3.5
USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. Each User and any Agency Account Administrator will also be asked to choose the initial username and password for any Agency Account
that is added to the Account (and can change the password for the Agency Account at any time).
You are entirely responsible for safeguarding and maintaining the confidentiality of your Account or Agency Account username and password. You authorize Upwork to assume that any person using the Site with your username and password,
either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or Agency Account or any unauthorized access to your password or the password
of any User of your Account (or any related Agency Account). You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to
do so to use your Account or Agency Account at any time.
3.6
MARKETPLACE FEEDBACK
You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Upwork post composite or compiled feedback about Users, including yourself, on User Profiles
and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score (“
JSS”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that Upwork will make feedback results available to other
marketplace Users, including composite or compiled feedback. Upwork provides this feedback system as a means through which Users can share their opinions publicly and Upwork does not monitor or censor these opinions. You acknowledge
and agree that posted composite or compiled feedback and any JSS relate only to the business advertised in the Freelancer Profile and not to any individual person. You agree not to use the JSS to make any employment, credit, credit
valuation, underwriting, or other similar decision about any other User.
Upwork does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Upwork do so. You may be held legally responsible for damages suffered by other Users or third parties as a result
of your remarks if such remarks are legally actionable or defamatory. Upwork is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is
defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Upwork reserves the right (but is under no obligation) to remove posted feedback or information that,
in Upwork’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify Upwork of any error or inaccurate statement in your feedback results, including the JSS,
and that if you do not do so, Upwork may rely on the accuracy of such information.
4.
PURPOSE OF THE
SITE AND SITE SERVICES
The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online. Subject to the Terms of Service, Upwork provides the Site Services to Users, including hosting
and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Freelancer Services, a Service Contract is formed directly between such
Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Freelancer), unless you are enrolled in Upwork Payroll. When a User enters a Service Contract, the User uses the Site to engage,
communicate, invoice and pay online.
4.1
ESCROW ACCOUNTS
Upwork Escrow provides escrow services to Users to deliver, hold, or receive payment for an Engagement, and to pay service, membership and payment processing and administration fees to Upwork (“Escrow
Services”). Upwork Escrow is a Delaware corporation and a licensed Internet escrow agent and holds California Department of Business Oversight License No. 963 5086. The Escrow Services are intended for business use, so
you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
Depending on your needs and the applicable Escrow Instructions, Upwork Escrow will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Agreement:
(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for an Engagement, Upwork Escrow will establish and maintain a “Client
Escrow Account” to hold funds for the Client to use to make payments for Engagements, to receive refunds in connection with Engagements, and to make payments to Upwork for payment processing and administration fees.
(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for an Engagement, Upwork Escrow will establish and maintain a “
Freelancer
Escrow Account” for the Freelancer to receive payments for Engagements, withdraw payments, make monthly membership payments and service fees to Upwork, and issue refunds to Clients.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, Upwork Escrow will establish and maintain a “Fixed-Price
Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct Upwork Escrow to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Escrow”)
in accordance with the Terms of Service and the applicable Escrow Instructions.
5.
CONTRACTUAL RELATIONSHIP
BETWEEN CLIENT AND
FREELANCER
5.1 SERVICE
CONTRACTS
Unless you use the services described in the Upwork Payroll Agreement (such services, “Upwork
Payroll”), you acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Fixed-Price Escrow Instructions; (b) the Hourly, Bonus and Expense Payment Agreement with Escrow
Instructions; (c) the Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand Upwork’s obligations or restrict Upwork’s rights under the Terms of Service; (d) the terms
in Section 8 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand Upwork’s obligations or restrict Upwork’s rights under the Terms of Service;
and (e) any other contractual provisions accepted by both the Client and the Freelancer, to the extent that the provisions do not, and do not purport to, expand Upwork’s obligations or restrict Upwork’s rights under the Terms of
Service. You acknowledge and agree that Upwork is not a party to any Service Contracts, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship
between Upwork and any Freelancer.
5.2
PAYMENT AGREEMENTS AND ESCROW
INSTRUCTIONS
Fixed-Price Engagements. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Upwork Escrow will follow, the Fixed-Price Escrow Instructions.
Hourly Engagements, Bonus Payments, or Expense Payments. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and Upwork Escrow will follow, the
Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
6.
PAYMENT
TERMS
6.1
SERVICE FEE
The fees to use the Site and Site Services are paid solely by the Freelancer. When a Client pays a Freelancer, or when funds related to an Engagement are otherwise released to a Freelancer as required by the applicable Escrow Instructions,
Upwork Escrow will credit the Freelancer Escrow Account for the full amount paid or released, and then subtract and disburse to Upwork a service fee in the amount specified in the
Upwork Fee and ACH
Authorization Agreement (the “Service Fee”). Freelancer agrees to pay Upwork the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including
Payment Protection. Refer to the Upwork Payroll
Agreement for applicable fees to use Upwork Payroll.
6.2
MEMBERSHIP FEES
Freelancers will subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Freelancer Membership
Agreement, as may be revised from time to time upon such notice as may be appropriate.
6.3
NO FEE FOR INTRODUCING OR FOR
FINDING ENGAGEMENTS
Upwork does not introduce Clients to Freelancers and does not help Freelancers secure Engagements. Upwork merely makes the Site Services available to enable Freelancers to do so themselves. Therefore, Upwork does not charge a fee when
a Freelancer finds a suitable Client or finds an Engagement. However, a Client and a Freelancer are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site, as detailed
in Section 7 (Non-Circumvention), below. In addition, Upwork does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.
6.4
DISBURSEMENTS TO FREELANCERS
Under the relevant Escrow Instructions, Upwork Escrow disburses funds that are payable to a Freelancer for the Engagement (less any applicable Upwork fees) to Freelancers within 90 days after the Freelancer Fees are due and payable
from Client (or for amounts less than $100, within 180 days after the Freelancer Fees are due and payable from Client). Freelancer agrees that it will not receive interest or other earnings on the funds held by Upwork Escrow prior
to disbursement to Freelancer.
For Hourly Contracts, funds become payable to Freelancers following the expiration of the dispute period and the security period, unless the Client has any Engagement using Upwork Payroll, in which case there is no dispute period or
security period. For Fixed-Price Contracts, the Freelancer Fees become payable to Freelancers following the expiration of the security period, unless the Client has any Engagement using Upwork Payroll in which case there is no security
period. The security period begins after Client accepts and approves work submitted by Freelancer by clicking the Make a Payment button. Upwork, Upwork Escrow, and Elance Limited may, in their sole discretion, deviate from the typical
billing cycle for Hourly Contracts and charge the Client for any and all Time Logs at any time. To the extent the Escrow Instructions are inconsistent with this paragraph, the Escrow Instructions govern.
Notwithstanding any other provision of the Terms of Service or the Escrow Instructions, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the
Site or the Terms of Service, Upwork Escrow may hold the disbursement of the Freelancer Fees. Additionally, Upwork Escrow may also hold the disbursement of the Freelancer Fees if: (a) we require additional information, such as Freelancer’s
tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Freelancer Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds
for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of the Terms of Service, Upwork reserves the right to revoke any payments and instruct Upwork Escrow to (and Upwork Escrow will have the right to) hold and reclaim from Upwork Escrow all Freelancer
Fees due to Freelancer (not just the Freelancer Fees from the Service Contract(s) under investigation) unless prohibited by applicable law. In addition, we reserve the right to seek reimbursement from you, and you will reimburse
us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we
receive any chargeback from the Payment Method used by you, or used by your Client if you are a Freelancer. You agree that we have the right to obtain such reimbursement by instructing Upwork Escrow to (and Upwork Escrow will have
the right to) charge an applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining
reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account and revocation of your access to the Site.
6.5
NON-PAYMENT
If Client fails to pay the Freelancer Fees or any other amounts due under the Terms of Service, whether by canceling Client’s credit or debit card, initiating an improper chargeback, or any other means, Upwork may suspend or close
Client’s Account and revoke Client’s access to the Site, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Freelancer Services. Without limiting
other available remedies, Client must pay Upwork upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest
allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Upwork or Upwork Escrow, at our discretion, may set off amounts due
against other amounts received from or held by Upwork or Upwork Escrow for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement
authorities in any resulting investigation or prosecution.
6.6
NO RETURN OF FUNDS
Client acknowledges and agrees that Upwork Escrow will charge Client’s designated Payment Method for the Freelancer Fees: (a) for Fixed-Price Contracts, upon Client’s acceptance and approval of the Freelancer Services, and (b) for
Hourly Contracts, on the Monday after the week in which work was performed. Therefore, and in consideration of the Site Services provided by Upwork and the Escrow Services provided by Upwork Escrow, Client agrees that once Upwork
Escrow charges the Client’s designated Payment Method for the Freelancer Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except as otherwise required by applicable law. Client also
acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank,
or other Payment Method provider to charge back any Freelancer Fees or other Fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service.
If Client initiates a chargeback in violation of this Agreement, Client agrees that Upwork or Upwork Escrow may dispute or appeal the chargeback and institute collection action against Client.
6.7
FORMAL INVOICES AND TAXES
Upwork will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Freelancer Fees. Freelancer will be solely responsible
for determining whether it is required by applicable law to issue any formal invoices for the Freelancer Fees and for issuing any invoices so required. Freelancer will also be solely responsible for determining whether: (a) Freelancer
or Upwork is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Freelancer Fees and remitting any such taxes or charges to the appropriate
authorities on behalf of itself or Upwork, as appropriate; and (b) Upwork is required by applicable law to withhold any amount of the Freelancer Fees and for notifying Upwork of any such requirement and indemnifying Upwork (either
by Upwork, at our sole discretion, offsetting the relevant amount against a future payment of Freelancer Fees to Freelancer or Freelancer reimbursing Upwork for the applicable amount) for any requirement to pay any withholding amount
to the appropriate authorities (including penalties and interest). In the event of an audit of Upwork, Freelancer agrees to promptly cooperate with Upwork and provide copies of Freelancer’s tax returns and other documents as may
be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to Upwork.
6.8
PAYMENT METHODS
Clients are charged a fee for payment processing and administration as described in the Upwork Fee and ACH
Authorization Agreement.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes Upwork, Upwork Escrow, and Elance Limited to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment
for Services, and to charge Client’s credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by Upwork Escrow. Notwithstanding the foregoing,
credit cards and PayPal accounts in Australia, Canada, the Eurozone, and the United Kingdom will be charged by Elance Limited, an Ireland registered company which is an Affiliate of Upwork.
When Client authorizes the payment of the Freelancer Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Upwork Escrow or Elance Limited to charge Client’s Payment Method for the
Freelancer Fees. When Client approves or is deemed to have approved a Time Log for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Upwork Escrow or Elance Limited to charge Client’s Payment Method
for the Freelancer Fees.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the
Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client
represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service
cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
6.9
US DOLLARS AND FOREIGN
CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Site may display foreign
currency conversion rates that Upwork, Upwork Escrow or other Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions.
Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion
and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign
currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and either Upwork, Upwork Escrow, or another Affiliate does not support the foreign currency or Client does not authorize
the conversion of such payment at the foreign currency conversion rate displayed on the Site, Upwork Escrow or an Affiliate will charge Client’s Payment Method in U.S. Dollars and Client’s Payment Method provider will convert the
payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency
conversion is involved. Client’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client’s sole risk. Upwork, Upwork Escrow, and other Affiliates are not responsible for currency fluctuations
that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Upwork, Upwork Escrow, and other Affiliates are not responsible for currency fluctuations that occur when receiving or sending
payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.
6.10
LIMITED PAYMENT PROTECTION
In the rare event that a Client does not make payment for legitimate services performed by a Freelancer, Upwork will provide limited payment protection to the Freelancer as detailed in this Section 6.10 (“Payment
Protection”) as a membership benefit to foster fairness, reward loyalty, and encourage the Freelancer to continue to use the Site and Site Services for their business needs.
Upwork only provides Payment Protection to Freelancers working on Hourly Contracts and only if all of requirements of the Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions and the following criteria are met: (a)
Client has a verified Payment Method; (b) the time represented is captured online using the Upwork Team Software; (c) the Freelancer Services performed and recorded in the Time Log pertain directly to the Service Contract; and (d)
each Time Log is annotated with descriptions of the Freelancer Services performed, demonstrating Service Contract compliance. Upwork determines whether the foregoing criteria have been met in our sole discretion. Without limiting
the foregoing, Payment Protection does not apply to: (w) Freelancers, Freelancer Services, or Service Contracts violating this Agreement or the other Terms of Service; (x) Freelancers that are aware of or complicit in another User’s
violation of this Agreement or the other Terms of Service; (y) Freelancers enrolled in Upwork Payroll; or (z) Freelancers that are suspected (in Upwork’s sole discretion) of actual fraudulent activities or abuse of this Payment Protection.
Freelancer hereby irrevocably assigns to Upwork the right to recover from the Client any amounts that Upwork or our Affiliates provide to the Freelancer in connection with the Payment Protection membership benefit.
7.
NON-CIRCUMVENTION
You acknowledge and agree that a substantial portion of the compensation Upwork receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service
Fee”). Upwork only receives this Service Fee when a Client and a Freelancer pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site
(the “Non-Circumvention
Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Upwork
Relationship”). You may opt-out of this obligation with respect to each Client-Freelancer relationship only if Client or prospective Client or Freelancer pays Upwork for each such relationship:
(a) an “Opt-Out
Fee” computed to be the greater of the following amounts:
(i) $2,500; or
(ii) 15% of the cost to the Client of the services to be performed in the Upwork Relationship during the Non-Circumvention Period, as estimated in good faith by the prospective Client; or
(iii) all Service Fees that would be earned by Upwork from the Upwork Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Freelancer from Client during the most recent normalized 8-week
period, or during such shorter period as data is available to Upwork; and
(b) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client first makes payment to the subject Freelancer until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to optoutfee@upwork.com.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
You agree to notify Upwork immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please
submit a confidential report to Upwork by sending an email message to: policy-reports@upwork.com.
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay
the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
8.
SERVICE
CONTRACT TERMS
Unless otherwise expressly agreed to in writing by both Users, and except for Freelancer Services using Upwork Payroll, the default terms and conditions of the Service Contract that a Freelancer enters directly with a Client when the
Freelancer agrees to provide Freelancer Services to the Client are as set forth in this Section 8. If Upwork Payroll is used for the Engagement, then only Sections 8.7 and 8.8 of this Section 8 apply. Users may agree between them
on any additional or different terms for their Service Contract as long as such terms do not and do not purport to affect the rights or responsibilities of Upwork or violate the Terms of Service. Upwork is not a party to any Service
Contract by or between Users.
Users agree that the terms concerning the Service Contract described on the Site, including Freelancer Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of the other before making
changes to the Service Contract by adding additional or different milestones or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes
by terminating the Service Contract (see Section 8.5) or accept such changes by continuing to work on the Service Contract.
8.1
SERVICES
Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled
solely by Freelancer, which is engaged by Client as an independent contractor.
8.2
RESPONSIBILITY FOR EMPLOYEES
AND SUBCONTRACTORS,
INCLUDING AGENCY MEMBERS
To ensure accurate billing, work billed for Hourly Contracts under a Freelancer’s Account must be performed by the Freelancer that has the Account. With an Agency Account, the Agency may bill for hourly work done by Agency Members.
If a User subcontracts with or employs third parties to perform Freelancer Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance
with all applicable laws and regulations. As used in this Agreement, the term “Delegee” refers to any employee, independent contractor, or agent of a User, including an Agency Member, that the User engages to perform
any work on its behalf under a Service Contract. Regardless of whether a User has Delegees, the User remains responsible for all services performed under the User’s Service Contracts, including ensuring that the services comply with
the Terms of Service (including confidentiality and intellectual property obligations). Each Agency specifically acknowledges and agrees that Agency Members have the authority to bind the Agency to Service Contracts entered into
by Agency Members on behalf of the Agency.
Freelancer, Agency, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of Upwork or Client. Agency, Delegee, and Freelancer represent, warrant, and covenant that: (a) Agency
and, if applicable, each other User is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers’ compensation insurance, contributions, and expenses of Delegees; (b) neither Upwork nor Client
has the right or power to supervise or control Delegees; and (c) no Delegees of any Agency or other User will have any claim under this Agreement or the other Terms of Service for overtime pay, sick leave, holiday or vacation pay,
retirement benefits, worker’s compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from Upwork or Client.
With respect to Delegees, Upwork merely provides the platform for Agency or Freelancer to communicate and share information with Clients and, if they are Users, with Delegees. Agency, Delegee, and Freelancer understand and agree that
the contract terms, pay rate, work hours, service dates and working conditions will be established by the Agency, Freelancer, and/or Client and not by Upwork. Agency, Delegee, and Freelancer acknowledge and agree that Delegees are
not employees or independent contractors of Upwork, and further acknowledge and agree that they will not be providing any services to Upwork (directly or indirectly) while employed or engaged by the Agency or another User.
Agency, Delegee, and Freelancer acknowledge and agree that Upwork does not, in any way, supervise, direct, or control Delegees; Upwork does not set Delegees’ contract terms (including determining whether the contract will be set at
an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; Upwork will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and Upwork does
not provide the premises at which the Delegees will perform the work.
8.3
CLIENT PAYMENTS AND BILLING
For Hourly Contracts, Client becomes obligated for Freelancer Fees on a weekly basis. For Fixed-Price Contracts, Client becomes obligated immediately upon sending a Fixed-Price Contract offer or upon activating any additional milestone.
8.4
DISPUTE RESOLUTION
With respect to disputes arising between Clients and Freelancers, you agree to abide by the dispute resolution provisions set forth in the Escrow Instructions that apply to your particular Service Contract.
8.5
TERMINATION OF A SERVICE
CONTRACT
Under Hourly Contracts, either Client or Freelancer has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion
of the Freelancer Services, in the event of a material breach, or with the consent of the other party. Except as required by law, Client remains obligated to pay the Freelancer Fees for any Freelancer Services provided prior to termination
of the Hourly Contract.
Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Freelancer, the Service Contract does not terminate until the Freelancer
Services are completed. However, either Client or Freelancer has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated,
Client does not have the right to recover any payments already released to Freelancer from the escrow account for the Engagement.
8.6
INTELLECTUAL PROPERTY RIGHTS
CERTAIN
DEFINED TERMS
The following capitalized terms have the following meanings:
“Background
Technology” means all Inventions developed by Freelancer other than in the course of providing Freelancer Services to Client under the Service Contract and all Inventions that Freelancer incorporates into Work Product.
“Client
Materials” means requests, intellectual property, and any other information or materials that Client provides to Freelancer for Freelancer to perform Freelancer Services.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and
all Intellectual Property Rights therein.
BACKGROUND
TECHNOLOGY
Freelancer will disclose in the Engagement Terms any Background Technology which Freelancer proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Freelancer discloses no Background
Technology, Freelancer warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Freelancer will separately provide, with each delivery of Work Product to Client, a third-party bill
of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated
version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Freelancer, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding
the foregoing, unless otherwise agreed in the Engagement Terms, Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will
create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined
with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
LICENSE
TO
BACKGROUND TECHNOLOGY
Upon Freelancer’s receipt of full payment from Client for delivery of Work Product, Freelancer hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights
to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use,
sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product,
the grant described herein applies only to the portion of Work Product delivered.
CLIENT
MATERIALS
Client grants Freelancer a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Materials as necessary solely for the performance of the Freelancer Services under the applicable Service
Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written
request, Freelancer will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained
in or on Freelancer’s premises, systems, or any other equipment or location otherwise under Freelancer’s control. Within ten days of such request from Client, Freelancer agrees to provide written certification to Client that Freelancer
has returned or destroyed all Client Materials and Work Product as provided in this subsection.
OWNERSHIP
OF WORK PRODUCT AND
INTELLECTUAL PROPERTY
Upon Freelancer’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed
to be the author thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to
Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual
Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery
of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
LICENSE
TO
OR WAIVER OF OTHER RIGHTS
If Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment
from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights
to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import,
offer for sale and exercise any and all such rights. If Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer’s receipt of payment from Client, unconditionally
and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent
to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
ASSISTANCE
Freelancer will assist Client in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating
to Work Product in all countries. In the event Client is unable, after reasonable effort, to secure Freelancer’s signature on any document needed in connection with the foregoing, Freelancer hereby designates and appoints Client
and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Freelancer.
IMMUNITY
A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either
directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such
filing is made under seal.
8.7
WORKER CLASSIFICATION
Client is responsible and assumes all liability for determining whether Freelancers are independent contractors or employees and engaging them accordingly; Upwork disclaims any liability for such determination or the related Engagement.
The Terms of Service do not create a partnership or agency relationship between Users. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Upwork. For Service Contracts
classified as independent contractor relationships, Client may not require an exclusive relationship. A Freelancer classified as an independent contractor is free at all times to provide Freelancer Services to persons or businesses
other than Client, including any competitor of Client.
For Freelancer Services classified as employment, Client must sign up for and participate in the Upwork Payroll program made available on the Site, with employment services provided as discussed in Section 8.8 (Employment Services), unless Client pays the Opt-Out Fee. For all purposes with Upwork Payroll, the
employer of the Freelancer will be the third-party Staffing Provider and not Upwork under any circumstances.
8.8 EMPLOYMENT
SERVICES
If a Client will receive services from a Freelancer it has classified as an employee, then the Client agrees that the Upwork Payroll Agreement applies, and Client agrees to enroll in Upwork Payroll for each such relationship. In this
case, Upwork’s third-party staffing vendor (the “Staffing
Provider”) will hire the Freelancer at the request of Client and assign the Freelancer to work for Client, as described in the Upwork Payroll Agreement.
If a Client and a Freelancer decide to use Upwork Payroll, then Freelancer acknowledges that Freelancer has agreed to become a Payroll Employee, employed by the Staffing Provider and assigned to Client, based on Freelancer’s own determination
that Client offers work acceptable and appropriate for Freelancer on terms that are acceptable to Freelancer. Freelancer agrees to complete such documents as the Staffing Provider may legally and reasonably require in connection
with the employer-employee relationship, including, without limitation, an authorization for a background check, an employment agreement or offer letter, applicable tax forms, and an I-9 or other documentation to establish authorization
for employment in the applicable country (collectively, the “Employment
Paperwork”). Freelancer will not become an employee of the Staffing Provider and will not start work until all Employment Paperwork has been completed and returned to the Staffing Provider, and the Staffing Provider has
accepted Freelancer as an employee. Once Freelancer becomes an employee of the Staffing Provider, unlike independent contractor engagements, Freelancer understands that he/she will not have the right to control the manner and means
by which he/she works and will be subject to the Staffing Provider’s policies and requirements.
With respect to Payroll Employees, Upwork merely provides the platform for Freelancer to communicate and share information with the Staffing Provider and Client. Freelancer understands and agrees that the pay rate, work hours, employment
dates and working conditions will be established or confirmed by the Staffing Provider and/or Client and not by Upwork, and that Freelancer will not have any contract on the Upwork Site or with Upwork regarding such employment terms;
any job posting, proposal, pay rate or other information in the platform is solely for the purpose of enabling the Payroll Employee to communicate with the Staffing Provider and the Client. Freelancer acknowledges and agrees that
he/she is not an employee of Upwork, and that he/she will not be providing any services to Upwork (directly or indirectly) while employed by the Staffing Provider unless Upwork is expressly designated in writing as the Client.
Freelancer understands and agrees that Freelancer is responsible for accurately recording Freelancer’s work hours and reporting all hours worked to the Staffing Provider. By completing and/or submitting a Time Log, Freelancer verifies
that the hours worked reflected in the Time Log are accurately recorded and include all hours worked, including but not limited to any overtime hours and any paid rest breaks that Freelancer is authorized to take by the Staffing
Provider and/or by applicable law. Any provision of this Agreement that would conflict with applicable law regarding the timing or amount of wage payments shall not apply to any Payroll Employee.
Freelancer agrees to personally provide all services for any contract under which the Freelancer is working as a Payroll Employee. Freelancer acknowledges that Freelancer, and not Upwork or the Staffing Provider, will be responsible
for timely and professionally completing all work that he or she is assigned while working as a Payroll Employee.
9.
RECORDS
OF COMPLIANCE
Users will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement; any Service Contract, including, without limitation, their respective payment obligations and compliance
with tax and employment laws; and any Upwork Payroll Agreement, and (2) provide copies of such records to Upwork upon request. Nothing in this subsection requires or will be construed as requiring Upwork to supervise or monitor a
User’s compliance with this Agreement, the other Terms of Service, or a Service Contract.
10.
RELATIONSHIP WITH UPWORK
Upwork is not a party to the dealings between Client and Freelancer, including posts, proposals, screening, selection, contracting, and performance of Freelancer Services. Upwork does not introduce Freelancers to Clients or help Freelancers
find Engagements. Upwork merely makes the Site Services available to enable Freelancers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Freelancers
for themselves. Upwork does not, in any way, supervise, direct, or control Freelancer or Freelancer’s work. Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if
the Freelancer Fees will be set at an hourly or fixed rate for a Service Contract. Upwork will not provide Freelancer with training or any equipment, labor, or materials needed for a particular Service Contract. Upwork does not provide
the premises at which the Freelancer will perform the work. Upwork makes no representations about, and does not guarantee the quality, safety, or legality of, the Freelancer Services; the truth or accuracy of Freelancer’s listings
on the Site; the qualifications, background, or identities of Users; the ability of Freelancers to deliver the Freelancer Services; the ability of Clients to pay for the Freelancer Services; or that a Client or Freelancer can or
will actually complete a transaction.
Upwork does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Freelancer, each of which is solely responsible for all tax returns and payments required to be filed with or made to any
federal, state, or local tax authority in any nation with respect to Freelancer’s performance, and Client’s acceptance, of Freelancer Services.
Upwork is not required to and may not verify any feedback or information given to us by Freelancers or Clients, nor does Upwork perform background checks on Freelancers or Clients.
You
hereby acknowledge and agree
that Upwork may provide
information on the Site
about a Freelancer or
Client, such as feedback,
composite feedback,
including a strength or risk
score, geographical
location, or verification of
identity or credentials.
However, such information is
based solely on data that
Freelancers or Clients
voluntarily submit to Upwork
and does not constitute and
will not be construed as an
introduction, endorsement,
or recommendation by Upwork;
Upwork provides such
information solely for the
convenience of Users.
11.
THIRD-PARTY BENEFICIARY
Users appoint Upwork as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, Upwork hereunder. For example, Section 5.1(c) and Section 5.1(d) of this
Agreement prohibit certain terms in any Service Contract and Upwork is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Users further agree that Upwork has the right to take such actions with respect
to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and Upwork, except and solely to the extent expressly
stated in this Agreement.
12.
COMMUNICATIONS FROM YOU
TO UPWORK
All notices to Upwork or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Legal, 441 Logue Ave., Mountain
View, CA 94043; or (c) in writing via email to
legalnotices@upwork.com. All such notices are deemed effective upon receipt by Upwork. Upwork does not accept service of any legal process by email or mail; all such service should occur by hand
delivery on Upwork or its registered agent for service of process.
13.
UPWORK’S ROLE
13.1
SERVICE CONTRACTS
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Freelancers; (b) Upwork is not a party to any Service Contracts between Clients and Freelancers; (c) you are
not an employee of Upwork, and Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Upwork will not have any liability or obligations under or related to Service Contracts for any
acts or omissions by you or other Users; (e) Upwork has no control over Freelancers or the Freelancer Services offered or rendered by Freelancers; and (f) Upwork makes no representations as to the reliability, capability, or qualifications
of any Freelancer or the quality, security, or legality of any Freelancer Services, and Upwork disclaims any and all liability relating thereto.
14.
LICENSES AND THIRD-PARTY
CONTENT
14.1
SITE LICENSE AND INTELLECTUAL
PROPERTY RIGHTS
Subject to and conditioned on compliance with the Terms of Service, Upwork grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access
(or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available.
You agree not to use the Site or Site Services for offering any goods or services other than Freelancer Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare
derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without Upwork’s prior written consent. You must not use any content of the Site or Site
Services on any other website or in a networked computer environment for any purpose except your own viewing without Upwork’s prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing
by Upwork. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the
Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the
Site Services. Upwork and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The Upwork logos and names are trademarks of Upwork and may
be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement,
nothing in the Terms of Service confers any license under any of Upwork’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
14.2
USER CONTENT LICENSE
When you post User Content on the Site or through the Site Services or provide Upwork with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified
below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and
privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that Upwork may exercise the rights to your User
Content granted under the Terms of Service without any liability or obligation for any payment.
You retain all ownership rights in any User Content you post on Upwork. To the extent permitted by applicable law, you also grant to Upwork and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual,
irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and
your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site and Upwork’s (and our
successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant
each User a non-exclusive license to access your User Content through the Site and to use, reproduce, distribute, display, and perform such User Content to the extent permitted through the normal functionality of the Site and subject
to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law.
Notwithstanding the foregoing paragraph, Upwork will only use or disclose User Content you post to any non-public area of the Site to the extent necessary to provide Site Services to you as further described in our Privacy Policy.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant Upwork and our successors and Affiliates
the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your
disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Upwork under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties,
and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission,
Upwork does not waive any rights to use similar or related ideas known or developed by Upwork or obtained from sources other than you.
14.3
UNAUTHORIZED ACCESS AND USE;
SITE INTERFERENCE; MALICIOUS
SOFTWARE
The Site contains robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual
content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately
large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code
that is part of the Site, or any services that are offered on the Site without the prior express written permission of Upwork and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation
of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or
copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security
or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology
or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that
is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt
data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of Upwork or any third party
14.4
THIRD-PARTY VERIFICATION
The Site makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that
of the respective author(s) or distributor(s) and not of Upwork. Upwork neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Upwork’s
authorized employees acting in their official capacities.
14.5
LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their
licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and
agree that Upwork is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding
if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links
and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
14.6
MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the
Site.
14.7
SITE UPDATES
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation,
“
Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular
features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will
be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. Upwork reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without
notice. You agree Upwork will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
15.
CONFIDENTIAL INFORMATION
15.1
CONFIDENTIALITY
To the extent a Client or Freelancer provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential
Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential
Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services (including, without limitation, the storage or transmission of Confidential Information
on or through the Site for use by Freelancer); and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services. A disclosure of information
will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or
to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
15.2
RETURN
If and when Confidential Information is no longer needed for the performance of the Freelancer Services for a Services Contract or at Client’s or Freelancer’s written request (which may be made at any time at Client’s or Freelancer’s
sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems,
or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection
within ten days after the receipt of disclosing party’s written request for such certification.
15.3
PUBLICATION
Without limiting Section 15.1 (Confidentiality), Client, Freelancer, and Upwork will not publish, or cause to be published, any other party’s Confidential Information or Work Product, except as may be necessary for performance of Freelancer
Services for a Services Contract.
16.
WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. UPWORK MAKES NO EXPRESS REPRESENTATIONS
OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPWORK DISCLAIMS ALL EXPRESS
AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR
ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 20 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST UPWORK WITH RESPECT TO
ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
17.
LIMITATION OF LIABILITY
Upwork is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL UPWORK, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF UPWORK, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER
FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY UPWORK WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED
AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR
ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
18.
RELEASE
In addition to the recognition that Upwork is not a party to any contract between Users, you hereby release Upwork, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims,
demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes,
for example and without limitation, any disputes regarding the performance, functions, and quality of the Freelancer Services provided to Client by a Freelancer and requests for refunds based upon disputes. Procedures regarding the
handling of certain disputes between Users are discussed in subsection 8.4 (Dispute Resolution).
TO THE
EXTENT APPLICABLE, YOU
HEREBY WAIVE THE PROTECTIONS
OF CALIFORNIA CIVIL CODE §
1542 (AND ANY ANALOGOUS LAW
IN ANY OTHER APPLICABLE
JURISDICTION) WHICH SAYS: “A
GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE
DEBTOR.”
This release will not apply to a claim that Upwork failed to meet our obligations under the Terms of Service.
19.
INDEMNIFICATION
You will indemnify, defend, and hold harmless Upwork, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified
Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit,
proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through
use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Freelancer as an independent contractor; the classification of Upwork as an employer or
joint employer of Freelancer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime
pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure
to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual
Property Rights or allegations thereof to the extent caused by you or your agents.
20.
AGREEMENT TERM AND
TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless
both you and Upwork expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination
of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to legalnotices@upwork.com. If you are using Upwork Payroll, you must legally terminate your relationship with Client or Freelancer, as applicable, before terminating this Agreement. In the event you properly terminate
this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement
and the other Terms of Service until all such Engagements have closed on the Site; (b) Upwork will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User;
and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to Upwork for any Site Services and to any Freelancers
for any Freelancer Services. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or Upwork
from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing
survive termination of this Agreement for any reason.
Without limiting Upwork’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter
or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion,
that your actions may cause legal liability for you, our Users, or Upwork or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed,
you may not use the Site under the same Account or a different Account or reregister under a new Account without Upwork’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim
available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
Without limiting Upwork’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed Upwork or our Affiliates under the Terms of Service, you must pay Upwork, and you authorize
Upwork or its Affiliate to charge you, for all fees owed to Upwork and our Affiliates and reimburse Upwork for the Opt-Out Fee, if applicable, all losses and costs (including any and all time of Upwork’s employees) and reasonable
expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties
and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, Upwork will retain this information along with all your
previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which Upwork will have
no liability whatsoever.
20.1
ENFORCEMENT OF AGREEMENT
Upwork has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service
or violated our rights or those of another party. Without limiting Upwork’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further
access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that
your actions may cause legal liability for you, other Users, or Upwork.
20.2
CONSEQUENCES OF AGREEMENT
TERMINATION
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Freelancer Services performed prior to the Effective Date of the termination or thereafter for any Service Contracts
executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes Upwork to charge to its Payment Method pursuant to Section 6 (Payment Terms). Subject to the applicable
Dispute Resolution Procedures, Upwork will pay Freelancer, in accordance with the provisions of Section 6 (Payment Terms) for all time recorded in the Time Logs incurred prior to the Effective Date of the termination or thereafter
for any Service Contracts executed before termination of this Agreement.
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill
of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows:
IF UPWORK DECIDES TO
SUSPEND OR CLOSE YOUR
ACCOUNT, UPWORK HAS THE
RIGHT BUT NOT THE OBLIGATION
TO: (A) NOTIFY OTHER USERS
THAT HAVE ENTERED INTO
SERVICE CONTRACTS WITH YOU
TO INFORM THEM OF YOUR
SUSPENDED OR CLOSED ACCOUNT
STATUS, AND (B) PROVIDE
THOSE USERS WITH A SUMMARY
OF THE REASONS FOR YOUR
ACCOUNT SUSPENSION OR
CLOSURE.
20.3
SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force
and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement
and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
21.
CANCELLATIONS, REFUNDS, AND
DISPUTES
21.1
DISPUTE PROCESS AND SCOPE
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract.
If a dispute arises between you and Upwork or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Upwork, and our Affiliates agree to resolve any claim, dispute, or controversy that arises
out of or relates to this Agreement, the other Terms of Service, your relationship with Upwork (including any claimed employment with Upwork or one of its Affiliates or successors), the termination of your relationship with Upwork,
or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the
Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from Upwork or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection,
privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in
any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee
benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes
or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Upwork or the termination of that relationship. Only with respect to
the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded
from the coverage of the Arbitration Provision.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
21.2
CHOICE
OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides.
21.3
INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify Upwork of the Claim at Attn: Legal, 441 Logue Ave., Mountain View, CA 94043 or by email to legalnotices@upwork.com, and Upwork agrees to provide to you a
notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim,
and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from Upwork must include pertinent account information, a brief description of the Claim, and Upwork’s contact
information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and Upwork will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if
successful, will avoid the need for further action.
21.4
MANDATORY BINDING ARBITRATION
AND CLASS ACTION/JURY TRIAL
WAIVER (DOES NOT APPLY TO
USERS LOCATED OUTSIDE THE
UNITED STATES AND ITS
TERRITORIES)
This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration
Provision”) applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Upwork, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS.
JAMS may be contacted at
www.jamsadr.com.
A.
SCOPE OF ARBITRATION
AGREEMENT AND CONDUCT OF
ARBITRATION
Arbitration as provided in this Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration
Provision”) is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with Upwork ends.
This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration,
either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then
in effect for JAMS. Notwithstanding the foregoing, any Claims by Freelancers that allege employment or worker classification claims will be conducted within 25 miles of where the Freelancer is located in accordance with the JAMS
Employment Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found atwww.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The parties agree that any party will have the right to appear at the arbitration
by telephone and/or video rather than in person.
You and Upwork will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Freelancer will pay JAMS arbitration fees only to the extent
those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. The arbitrator must follow applicable law and may award only those remedies
that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between the Company and you to which you are a party that is or was already pending in a state or federal court before the expiration of your opt-out period. This Arbitration
Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either you or Upwork may apply to a court of competent jurisdiction for provisional injunctive relief
in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter.
Regardless of any other terms of this Arbitration Provision, a claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the claim
notwithstanding the existence of this agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor,
or the National Labor Relations Board. Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust
administrative remedies before making a claim in arbitration, if any.
B.
INTERPRETATION AND
ENFORCEMENT OF THIS
ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide,
all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion
of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate,
including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration
Provision is deemed to be unenforceable, you and Upwork agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
C. CLASS
ACTION AND JURY TRIAL WAIVER
This
arbitration provision
affects your ability to
participate in class,
collective or representative
actions. Both you and Upwork
agree to bring any dispute
in arbitration on an
individual basis only, and
not on a class, collective,
or representative basis on
behalf of others. There will
be no right or authority for
any dispute to be brought,
heard or arbitrated as a
class, collective,
representative or private
attorney general action, or
as a member in any such
class, collective,
representative or private
attorney general proceeding
(“Class Action Waiver”). The
Class Action Waiver does not
prevent you from bringing a
Claim in arbitration as a
private attorney general
solely on your own behalf
and not on behalf of others.
Notwithstanding any other
portion of this Arbitration
Provision or the JAMS Rules,
the arbitrator will have
authority to hear any Claim
on a class, collective, or
representative basis if,
only if, and only to the
extent that, the arbitrator
determines that the waiver
of such class, collective,
or representative Claim is
unenforceable. You and
Upwork agree that you will
not be retaliated against,
disciplined or threatened
with discipline as a result
of exercising any rights
under Section 7 of the
National Labor Relations Act
by filing or participating
in a class, collective or
representative action in any
forum. However, Upwork may
lawfully seek enforcement of
this arbitration provision
and the Class Action Waiver
under the Federal
Arbitration Act and seek
dismissal of such class,
collective or representative
actions or claims.
D. RIGHT
TO OPT OUT OF ARBITRATION
AND CLASS ACTION/JURY TRIAL
WAIVER.
You
may opt out of the foregoing
arbitration and class
action/jury trial waiver
provision of this Agreement
by notifying Upwork in
writing within 30 days of
the date you first
registered for the Site.
To opt out, you must send a written notification to Upwork at Attn: Legal, 441 Logue Ave., Mountain View, CA 94043 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone
number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class
action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to legalnotices@upwork.com.
22.
GENERAL
22.1
ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Upwork relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous
discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms
of Service are included for ease of reference only and have no binding effect. Even though Upwork drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service.
If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Upwork because of the authorship of any provision of the Terms of
Service.
22.2
SIDE AGREEMENTS
Notwithstanding subsection 22.1 (Entire Agreement), Clients and Freelancers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements,
assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand Upwork’s obligations or restrict Upwork’s rights
under the Terms of Service.
22.3
COMPLIANCE
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations,
including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
22.4
MODIFICATIONS
No modification or amendment to the Terms of Service will be binding upon Upwork unless in a written instrument signed by a duly authorized representative of Upwork. For the purposes of this subsection, a written instrument will expressly
exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 22.4 (Modifications) does not apply to amendments to the Terms of Service posted by Upwork to the Site from time to
time.
22.5
NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues
an express written waiver, signed by a duly authorized representative of such party.
22.6
ASSIGNABILITY
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Upwork’s prior written consent in the form of a written instrument signed by a duly authorized representative of Upwork (and, for the
purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). Upwork may freely assign this Agreement or the other Terms of
Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and
permitted assigns of the parties.
22.7
SEVERABILITY
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to
the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the
maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other
jurisdiction or of any other provision in any jurisdiction.
22.8
FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures,
strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance
of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day
notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate, except as provided in Section 20.3.
22.9
PREVAILING LANGUAGE AND
LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the
United States. Upwork makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible
for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United
States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose
of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including
services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site;
or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in
the United States.
23.
DEFINITIONS
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Upwork.
“Client” means any authorized User utilizing the Site to seek and/or obtain Freelancer Services from another User. From time to time, Upwork may act as a Client, and the terms and conditions of this Agreement applicable
to Clients will apply to Upwork when Upwork acts in this way.
“Client
Deliverables” means requests, intellectual property, and any other information or materials that a Freelancer receives from a Client to perform Freelancer Services.
“Confidential
Information” means Client Deliverables, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Freelancer Services,
regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission
of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving
it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Engagement” means an engagement for Freelancer Services that a Freelancer provides to a Client under a Service Contract on the Site.
“Escrow
Account” means Client Escrow Account, Freelancer Escrow Account, or Fixed-Price Escrow Account.
“Escrow
Instructions” means the Fixed-Price Escrow Instructions or the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
“Fixed-Price
Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted
by Client for such Service Contract.
“Freelancer” means any authorized User utilizing the Site to advertise and provide Services to Clients.
“Freelancer
Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract.
“Freelancer
Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Freelancer in the Time Logs, multiplied by the hourly rate set by the Freelancer; (b) for a Fixed-Price Contract, the fixed fee
agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client.
“Freelancer
Services” means all services performed for or delivered to Clients by Freelancers.
“Hourly
Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Freelancer.
“Intellectual
Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property
rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment
Method” means a valid credit card issued by a bank acceptable to Upwork, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Upwork may accept from time to time in
our sole discretion.
“Payroll
Employee” means a Freelancer enrolled in Upwork Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Freelancer Services to one or more Client(s).
“Service
Contract” means, as applicable, (a) the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for an Engagement; or (b) if you use Upwork
Payroll, the contractual provisions between Freelancer and the Staffing Provider for the provision of services to Client, if any; and, in each case, the additional agreements referenced in Section 5.1 (Service Contracts).
“Substantial
Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Time
Logs” means the report of hours recorded for a stated period by a Freelancer for the Freelancer Services performed for a Client.
“Upwork
Team Software” means the online platform accessed using Upwork’s downloaded team software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“User
Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to Upwork.
“Work
Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to,
configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
24.
CONTACTING US
If you have questions or need assistance, please contact Customer Support.
Privacy Policy
Effective September 30, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service,
which governs your use
of the Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, which
links you clicked on, which
pages or content you viewed
and for how long, other
similar information and
statistics about your
interactions, such as
content response times,
download errors and length
of visits to certain pages
and other information
commonly shared when
browsers communicate with
websites. We may combine
this automatically collected
log information with other
information we collect about
you. We do this to improve
services we offer you, and
to improve marketing,
analytics, and site
functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website
and the mobile app,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online services you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates and earnings
information, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com or legalnotices@upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features on
Upwork and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com
or legalnotices@upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com
or legalnotices@upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the
Terms
of Use
.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at https://support.upwork.com
or legalnotices@upwork.com
to request that we
remove this information from
our database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time through the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your Choices
and Rights below), we delete the
information you submit to
verify your identity after
30 days and we retain other
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to view a job post or submit a proposal for work as a Freelancer via the Service, we may share relevant information with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other websites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or close
their account and/or
request deletion of all
Personal Information we
have about them. In
certain jurisdictions,
Users may have certain
rights with regard to
their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days or as
otherwise required by law.
If your information is
deleted, then your account
may become deactivated. If
your account is deactivated
or you ask to close your
account, you will no longer
be able to use the Service.
If you would like to close
your account in our system,
you can do so through the
Upwork Service (once you
have logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below).
For
example, if you are located
in the European Economic
Area (“EEA”), in
addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
Privacy Center for more
information or to submit
a request to us
regarding your Personal
Information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at privacyrequests@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority and to seek
judicial remedy.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service.
In addition,
the rights
described above may be
limited, for example, if
fulfilling your request
would reveal personal
information about
another person, or if
you ask us to delete
information we are
required by law to keep
or have compelling
legitimate interests in
keeping (such as for
fraud prevention
purposes). Your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally for our administrative purposes, to the extent permitted
by law. It is not always possible to completely remove or delete information from our databases. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor
Upwork can delete all copies of information that has been previously shared with others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
Upwork and its
affiliates Upwork Inc.,
Upwork Escrow Inc., Elance,
Inc., and Upwork Talent
Group, Inc. have certified
that their U.S. operations
adhere to the EU-U.S. and
Swiss-U.S. Privacy Shield
Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that they
receive in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork or one
of its affiliates receives
Personal Information under
the Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on their
behalf, Upwork or its
affiliate may have certain
responsibility under the
Privacy Shield if both (i)
the agent processes the
information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork or its affiliate is
responsible for the event
giving rise to the damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s or its affiliates'
compliance with the Privacy
Shield. Upwork will attempt
to answer your questions and
satisfy your concerns in a
timely and complete manner
as soon as possible. If,
after discussing the matter
with Upwork, your issue or
complaint is not resolved,
Upwork and the above-named
affiliates have agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork or its
affiliates receive under the
Privacy Shield, Upwork and
its affiliates have
committed to refer
unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at https://www.privacyshield.gov. Every individual also has a right to lodge a complaint with the relevant supervisory authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or legalnotices@upwork.com,
or by mail addressed to
Upwork, Attn: Legal, 2625
Augustine Drive, Suite 601,
Santa Clara, CA 95054, USA.
Effective July 18, 2019 to September 30, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service,
which governs your use
of the Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, which
links you clicked on, which
pages or content you viewed
and for how long, other
similar information and
statistics about your
interactions, such as
content response times,
download errors and length
of visits to certain pages
and other information
commonly shared when
browsers communicate with
websites. We may combine
this automatically collected
log information with other
information we collect about
you. We do this to improve
services we offer you, and
to improve marketing,
analytics, and site
functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website
and the mobile app,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online services you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates and earnings
information, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com or legalnotices@upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features on
Upwork and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com
or legalnotices@upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com
or legalnotices@upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the
Terms
of Use
.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at https://support.upwork.com
or legalnotices@upwork.com
to request that we
remove this information from
our database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time through the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your Choices
and Rights below), we delete the
information you submit to
verify your identity after
30 days and we retain other
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other websites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or close
their account and/or
request deletion of all
Personal Information we
have about them. In
certain jurisdictions,
Users may have certain
rights with regard to
their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days or as
otherwise required by law.
If your information is
deleted, then your account
may become deactivated. If
your account is deactivated
or you ask to close your
account, you will no longer
be able to use the Service.
If you would like to close
your account in our system,
you can do so through the
Upwork Service (once you
have logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority and to seek
judicial remedy.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service.
In addition,
the rights
described above may be
limited, for example, if
fulfilling your request
would reveal personal
information about
another person, or if
you ask us to delete
information we are
required by law to keep
or have compelling
legitimate interests in
keeping (such as for
fraud prevention
purposes). Your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally for our administrative purposes, to the extent permitted
by law. It is not always possible to completely remove or delete information from our databases. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor
Upwork can delete all copies of information that has been previously shared with others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
Upwork and its
affiliates Upwork Inc.,
Upwork Escrow Inc., Elance,
Inc., and Upwork Talent
Group, Inc. have certified
that their U.S. operations
adhere to the EU-U.S. and
Swiss-U.S. Privacy Shield
Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that they
receive in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork or one
of its affiliates receives
Personal Information under
the Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on their
behalf, Upwork or its
affiliate may have certain
responsibility under the
Privacy Shield if both (i)
the agent processes the
information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork or its affiliate is
responsible for the event
giving rise to the damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s or its affiliates'
compliance with the Privacy
Shield. Upwork will attempt
to answer your questions and
satisfy your concerns in a
timely and complete manner
as soon as possible. If,
after discussing the matter
with Upwork, your issue or
complaint is not resolved,
Upwork and the above-named
affiliates have agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork or its
affiliates receive under the
Privacy Shield, Upwork and
its affiliates have
committed to refer
unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at https://www.privacyshield.gov. Every individual also has a right to lodge a complaint with the relevant supervisory authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or legalnotices@upwork.com,
or by mail addressed to
Upwork, Attn: Legal, 2625
Augustine Drive, Suite 601,
Santa Clara, CA 95054, USA.
Effective July 18, 2019 to July 18, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service,
which governs your use
of the Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, which
links you clicked on, which
pages or content you viewed
and for how long, other
similar information and
statistics about your
interactions, such as
content response times,
download errors and length
of visits to certain pages
and other information
commonly shared when
browsers communicate with
websites. We may combine
this automatically collected
log information with other
information we collect about
you. We do this to improve
services we offer you, and
to improve marketing,
analytics, and site
functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website
and the mobile app,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online services you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates and earnings
information, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com or legalnotices@upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features on
Upwork and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com
or legalnotices@upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com
or legalnotices@upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the
Terms
of Use
.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at https://support.upwork.com
or legalnotices@upwork.com
to request that we
remove this information from
our database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time through the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your Choices
and Rights below), we delete the
information you submit to
verify your identity after
30 days and we retain other
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other websites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or close
their account and/or
request deletion of all
Personal Information we
have about them. In
certain jurisdictions,
Users may have certain
rights with regard to
their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days or as
otherwise required by law.
If your information is
deleted, then your account
may become deactivated. If
your account is deactivated
or you ask to close your
account, you will no longer
be able to use the Service.
If you would like to close
your account in our system,
you can do so through the
Upwork Service (once you
have logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority and to seek
judicial remedy.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In addition,
the rights
described above may be
limited, for example, if
fulfilling your request
would reveal personal
information about
another person, or if
you ask us to delete
information we are
required by law to keep
or have compelling
legitimate interests in
keeping (such as for
fraud prevention
purposes). Your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally for our administrative purposes, to the extent permitted
by law. It is not always possible to completely remove or delete information from our databases. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor
Upwork can delete all copies of information that has been previously shared with others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
Upwork and its
affiliates Upwork Inc.,
Upwork Escrow Inc., Elance,
Inc., and Upwork Talent
Group, Inc. have certified
that their U.S. operations
adhere to the EU-U.S. and
Swiss-U.S. Privacy Shield
Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that they
receive in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork or one
of its affiliates receives
Personal Information under
the Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on their
behalf, Upwork or its
affiliate may have certain
responsibility under the
Privacy Shield if both (i)
the agent processes the
information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork or its affiliate is
responsible for the event
giving rise to the damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s or its affiliates'
compliance with the Privacy
Shield. Upwork will attempt
to answer your questions and
satisfy your concerns in a
timely and complete manner
as soon as possible. If,
after discussing the matter
with Upwork, your issue or
complaint is not resolved,
Upwork and the above-named
affiliates have agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork or its
affiliates receive under the
Privacy Shield, Upwork and
its affiliates have
committed to refer
unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield for more information
and to file a complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at https://www.privacyshield.gov. Every individual also has a right to lodge a complaint with the relevant supervisory authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or legalnotices@upwork.com,
or by mail addressed to
Upwork, Attn: Legal, 2625
Augustine Drive, Suite 601,
Santa Clara, CA 95054, USA.
Effective June 24, 2019 to July 18, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service,
which governs your use
of the Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further
information on cookies
and how they are used
for the Service, please
visit our Cookie Policy
at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com or legalnotices@upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com
or legalnotices@upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com
or legalnotices@upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the
Terms
of Use
.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at https://support.upwork.com
or legalnotices@upwork.com
to request that we
remove this information from
our database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your Choices
and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As a business subject
to the investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com
or legalnotices@upwork.com,
or by mail addressed to
Upwork, Attn: Legal, 2625
Augustine Drive, Suite 601,
Santa Clara, CA 95054, USA.
Effective April 20, 2019 to June 24, 2019
DownloadTable of Contents
|
|
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service,
which governs your use
of the Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further
information on cookies
and how they are used
for the Service, please
visit our Cookie Policy
at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com or legalnotices@upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com
or legalnotices@upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com
or legalnotices@upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the
Terms
of Use
.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at https://support.upwork.com
or legalnotices@upwork.com
to request that we
remove this information from
our database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your Choices
and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As a business subject
to the investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or legalnotices@upwork.com,
or by mail addressed to
Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective April 20, 2019 to April 20, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service,
which governs your use
of the Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further
information on cookies
and how they are used
for the Service, please
visit our Cookie Policy
at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com or legalnotices@upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com
or legalnotices@upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com
or legalnotices@upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the
Terms
of Use
.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at https://support.upwork.com
or legalnotices@upwork.com
to request that we
remove this information from
our database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your Choices
and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web
beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As a business subject
to the investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or legalnotices@upwork.com,
or by mail addressed to
Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective April 20, 2019 to April 20, 2019
DownloadTable of Contents
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|
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service, which
governs your use of the
Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the Terms of Use.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at
support.upwork.com to
request that we remove this
information from our
database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your
Choices and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web
beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As a business subject
to the investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or by mail addressed
to Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective March 6, 2019 to April 20, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service, which
governs your use of the
Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the Terms of Use.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at
support.upwork.com to
request that we remove this
information from our
database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your
Choices and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web
beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Please see our
GDPR
Help Center for more
information. Upwork uses
automated means to
calculate the Job
Success Score of
Freelancers. If you
believe that our
services have
miscalculated your Job
Success Score or you
would like to exercise
any other rights with
regard to your Personal
Information, please email us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As a business subject
to the investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or by mail addressed
to Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective July 26, 2018 to March 6, 2019
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service, which
governs your use of the
Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the Terms of Use.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at
support.upwork.com to
request that we remove this
information from our
database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your
Choices and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web
beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Upwork
uses automated means to
calculate the Job Success
Score of Freelancers. If you
believe that our services
have miscalculated your Job
Success Score, please email
us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As
a business subject to the
investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or by mail addressed
to Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective June 21, 2018 to July 26, 2018
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service, which
governs your use of the
Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the Terms of Use.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at
support.upwork.com to
request that we remove this
information from our
database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your
Choices and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web
beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Upwork
uses automated means to
calculate the Job Success
Score of Freelancers. If you
believe that our services
have miscalculated your Job
Success Score, please email
us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As
a business subject to the
investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our
self-certification is
currently under review for
approval by the Department
of Commerce. If approved,
our Privacy Shield
certification will be
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or by mail addressed
to Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective May 25, 2018 to June 21, 2018
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
If you have an
unresolved privacy or data
use concern that we have not
addressed satisfactorily,
please contact our
U.S.-based third party
dispute resolution provider
free of charge at https://feedback-form.truste.com/watchdog/request.
Please note that
certain features or services
referenced in this Privacy
Policy may not be offered on
the Service at all times.
Please also review our Terms
of Service, which
governs your use of the
Service, and which is
accessible at /legal/terms/.
We’ve provided short
summaries in this Privacy
Policy to help you
understand what information
we collect, how we use it,
and what choices or rights
you may have. While these
summaries help explain some
of the concepts in a simple
and clear way, we encourage
you to read the entire
Privacy Policy to understand
our data practices.
TABLE OF CONTENTS
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION
COLLECTION
Users of the Service
may be Clients, Freelancers,
or Agencies (as each
is defined in the User
Agreement).
Information
You Provide to Us
When you use
the Service, you may
provide us with
information about you.
This may include your
name and contact
information, financial
information to make or
receive payment for
services obtained
through the Upwork
platform, or information
to help us fill out tax
forms. When you use the
Service, we may also
collect information
related to your use of
the Service and
aggregate this with
information about other
users. This helps us
improve our Services for
you. You may also
provide us with
information about your
contacts or friends if,
for example, you’d like
to add those contacts to
a message room. Agencies
may also provide us with
information about
Freelancers associated
with the Agency.
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a
statutory obligation to
provide us with any
information, but you may
have a contractual
obligation to do so, and if
we do not receive certain
information from you, then
we will not be able to
provide our Service to you.
If you have any questions
regarding whether provision
of information is mandatory
and the consequences for
withholding such
information, please contact
us using the contact
information below.
Information
Received from Third
Parties
Third parties
may also give us
information about you.
If we combine that
information with
information about you
collected through the
Service, we will still
treat that combined
information as set forth
in this Privacy Policy.
We also may
receive information about
you from third parties. For
example, we may supplement
the information we collect
with outside records or
third parties may provide
information in connection
with a co-marketing
agreement or at your request
(such as if you choose to
sign in with a third-party
service). If we combine the
information we receive from
others with information we
collect through the Service,
we will treat the combined
information as described in
this Privacy Policy.
Information
Collected
Automatically
Like other
online companies, we
receive technical
information when you use
our Services. We use
these technologies to
analyze how people use
our Services, to improve
how our Site functions,
to save your log-in
information for future
sessions, and to serve
you with advertisements
that may interest you.
We and our third party
service providers, including
analytics and third party
content providers, may
automatically collect
certain information from you
whenever you access or
interact with the Service.
This information may
include, among other
information, the browser and
operating system you are
using, the URL or
advertisement that referred
you to the Service, the
search terms you entered
into a search engine that
led you to the Service,
areas within the Service
that you visited, and other
information commonly shared
when browsers communicate
with websites. We may
combine this automatically
collected log information
with other information we
collect about you. We do
this to improve services we
offer you, to improve
marketing, analytics, and
site functionality.
The information we
collect also includes the
Internet Protocol (“IP”)
address or other unique
device identifier (“Device
Identifier”) for any
device (computer, mobile
phone, tablet, etc.) used to
access the Service. A Device
Identifier is a number that
is automatically assigned or
connected to the device you
use to access the Service,
and our servers identify
your device by its Device
Identifier. Some mobile
service providers may also
provide us or our third
party service providers with
information regarding the
physical location of the
device used to access the
Service.
Upwork
and its partners use
cookies or similar
technologies to
analyze trends,
administer the
website, track
users’ movement
around the website,
and to gather
demographic
information about
our user base as a
whole. The
technology used to
collect information
automatically from
Upwork Users may
include the
following:
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and
our marketing partners,
affiliates, analytics, and
service providers may use a
variety of other
technologies (such as tags)
that collect similar
information for security and
fraud detection purposes and
we may use third parties to
perform these services on
our behalf.
HOW WE RESPOND TO
DO NOT TRACK SIGNALS
Upwork does
not respond to
Do-Not-Track signals.
Please note that your
browser setting may allow
you to automatically
transmit a “Do Not Track”
signal to websites and
online service you visit.
There is no consensus among
industry participants as to
what “Do Not Track” means in
this context. Like many
websites and online
services, Upwork does not
alter its practices when it
receives a “Do Not Track”
signal from a visitor’s
browser. To find out more
about “Do Not Track,” please
visit http://www.allaboutdnt.com.
Work
Diaries and Work
View
We collect
information about a
Freelancer’s work for a
Client, including
automatically collected
information about work
on a particular project.
We will share Work
Diaries with the
relevant Client and
Agency. We tell
Freelancers when we are
capturing information
for the Work Diary and
allow Freelancers to
block such data sharing.
As part of the
Service, we collect
information about a
Freelancer’s work on a
project for a Client. This
feature is known as Work
Diary. Work Diaries include
information provided by the
Freelancer, such as a memo,
as well as automatically
gathered information about
work on a project, such as
number of mouseclicks and
keyboard strokes and
regularly taken screenshots
(which may include a webcam
picture of you if you have
not disabled this feature in
your settings). In order to
use Work Diaries, you must
download and install the
Team App software from
www.upwork.com.
We will share
information contained in
Work Diaries with the
relevant Client and with any
manager or administrator of
any applicable Freelancer
Agency. We inform
Freelancers each time we
capture information for Work
Diary. As set forth in our
Terms of Service, End User
License Agreement, and help
pages on the Site, a
Freelancer may choose to
block or delete the screen
shot and associated data for
a recorded work interval,
but then the Freelancer may
not be paid for that work
interval. Upwork may use
general information from
Work Diaries for statistical
analysis, product
development, marketing and
research.
User
Profiles
Freelancers
may create a profile,
with certain or all
information publicly
available. Clients and
Agencies may also create
organization profiles.
You may have the
opportunity to create a
profile, which consists of
information about you, and
may include Personal
Information, photographs,
examples of your work,
information on work
previously performed via the
Service and outside the
Service, skills, tests
taken, test scores, hourly
pay rates, feedback/rating
information and other
information, including your
username (“Profile”).
The information in your
Profile may be visible to
all Upwork Users and the
general public subject to
the privacy choices you make
within your Upwork Profile.
You may edit certain
information in your Profile
via your account and may
choose to limit who is able
to view certain content you
post to your Profile.
Clients and Agencies of
associated individual users
or companies may also have
the opportunity to create an
organization Profile. If, in
any case, you believe that
an unauthorized profile has
been created about you, you
can request for it to be
removed by contacting us at
https://support.upwork.com.
Messaging
Freelancers, Agencies,
and Clients may communicate
with each other through the
Service. For example,
Freelancers, Agencies, and
Clients may wish to discuss
Client needs and Freelancer
work proposals. If you
communicate with an Agency
or Client, that Agency or
Client will also be a “data
controller” with respect to
such communications.
Community
Forums
We may offer
public forums or blogs.
If you participate, your
comments and questions
will be publicly
displayed.
The Service may
provide you the opportunity
to participate and post
content publicly in forums,
on blogs, through
interactive features Upwork
and through other
communication functionality
(“Community Forums”).
You may choose, through such
features or otherwise, to
submit or post questions,
comments, or other content
(collectively, “User
Forum Content”).
Please note that certain
information, such as your
name and Profile may be
publicly displayed on the
Service along with your User
Forum Content. Please note
that your use of Community
Forums is subject to the
Upwork Forum Rules and our
Terms of Service.
Note that
anything you post to a
Community Forum is
public — others
will have access to your
User Forum Content and
may use it or share it
with third parties. If
you choose to
voluntarily disclose
Personal Information in
your User Forum Content
or use Community Forums
to link to your Profile,
that information will be
considered public
information and the
protections of this
Privacy Policy will not
apply.
To request
removal of your personal
information from our
blog or community forum,
contact us at https://support.upwork.com. In some cases, we
may not be able to remove
your Personal Information,
in which case we will let
you know if we are unable to
do so and why.
Testimonials
We display personal
testimonials of satisfied
customers on our Service, in
addition to other
endorsements. With your
consent we may post your
testimonial along with your
name. If you wish to update
or delete your testimonial,
you can contact us at
https://support.upwork.com.
Work
Listings Through the
Service
If you choose to
post a work listing via the
Service as a Client, the
contents of such listing
will be viewable publicly,
unless you designate the
listing as only viewable
through the Service or as
private using the settings
available on the applicable
website. Work listings
include information such as
budget, location, history of
work listing(s) by the
Client, the names of other
Freelancers performing work
for the Client, Client
feedback and rating
information and timing of
project performance.
Feedback
We collect feedback
from Upwork Users about
their experience with other
Upwork Users of our Service.
Please note that any
feedback you provide via the
Service or feedback provided
about you is publicly
viewable via the Service. On
very rare occasions, we may
remove feedback pursuant to
the relevant provisions of
our Terms of Service,
including the Terms of Use.
Email
to Friends and
Referral Program
Upwork lets you send
project postings to friends
via email. Upwork also
offers the ability to send
friends emails about
providing or purchasing
services through the
Service. If you choose to
use either feature, your
friend’s email address will
be used to send the
requested posting and your
email address will be used
to copy you on the message
to your friend or to send
the message on your behalf.
Upwork stores this
information for the sole
purpose of sending this
one-time email and tracking
the success of our referral
program.
Your friend may
contact us at
support.upwork.com to
request that we remove this
information from our
database.
You may
register for an account
directly with our Site,
or through a social
networking service. If
you register with a
social networking
service (or later link
your account to one), we
will collect certain
information about you
from that social
networking service, and
what we collect depends
on your privacy settings
with that social
networking service. The
Service may also allow
you to “like” or share
content with social
networking services.
You may register to
join the Service directly
via the Service or by
logging into your account
with a third party social
networking service (“SNS”)
via our Service (e.g.,
Facebook, Github and other
third party services that
let you sign in using your
existing credentials with
those services). If you
choose to register via an
SNS, or to later link your
account with the Service to
your account with an SNS, we
will use the Personal
Information you have
provided to the SNS (such as
your name, email address,
gender and other information
you make publicly available
via the SNS) to create your
account. Note that the
information we collect from
and through an SNS may
depend on the privacy
settings you have set with
the SNS and the permissions
you grant to us in
connection with linking your
account with the Service to
your account with an SNS.
Other than what we may share
with the SNS as described
below, the Personal
Information an SNS has about
you is obtained by the SNS
independent of our Service,
and Upwork is not
responsible for it.
The Upwork Service
also may permit additional
interactions between it and
a third party website,
service, or other content
provider, such as enabling
you to “like” or share
content to a third party
SNS. If you choose to “like”
or share content, or to
otherwise share information
from or via our Service with
a third party site or
service, that information
may be publicly displayed,
and the third party may have
access to information about
you and your use of our
Service (and we may have
access to information about
you from that third party).
These features may collect
your IP address, which page
you are visiting on our
site, and may set a cookie
to enable the feature to
function properly. Your
interactions with third
parties through an SNS or
similar features are
governed by the respective
privacy policies of those
third parties.
You represent that you
are entitled to use your SNS
account for the purposes
described herein without
breach by you of any of the
terms and conditions that
govern the SNS, and without
obligating Upwork to pay any
fees or making Upwork
subject to any usage
limitations imposed by such
SNS. You can disable the
link between your Upwork
account and your SNS account
at any time though the
“Settings” section of our
Service. Please note that
your relationship with any
SNS is governed solely by
your agreement(s) with such
SNS. If your SNS account
terminates, then functions
enabled through the link
between your Upwork account
and your SNS account will
terminate as well.
2. USE OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION
WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
We use your Personal
Information for the purposes
described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
-
For Our
Legitimate Interests. In
many cases, we handle
Personal Information on
the grounds that it
furthers our legitimate
interests in commercial
activities, such as the
following, in ways that
are not overridden by
the interests or
fundamental rights and
freedoms of the affected
individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
3. DATA
RETENTION
Unless you request
that we delete certain
information (see Your
Choices and Rights below), we retain the
information we collect for
at least 5 years. Your
information may persist in
copies made for backup and
business continuity purposes
for additional time. If you
choose to provide us with
Personal Information, we
encourage you to routinely
update the data to ensure
that we have accurate and
up-to-date information about
you.
4. INFORMATION SHARING
AND DISCLOSURE
We may share
information about you to
provide the Services,
for legal and
investigative purposes,
in connection with
sweepstakes and
promotions, or if we are
part of a merger or
acquisition. We may also
share non-identifying
information with third
parties. You have
choices as to whether we
share your personal
information with third
parties for their own
marketing purposes.
We may share
aggregated Non-Identifying
Information and we may
otherwise disclose
Non-Identifying Information
(including, without
limitation, Hashed
Information) to third
parties. We do not share
your Personal Information
with third parties for those
third parties’ marketing
purposes unless we first
provide you with the
opportunity to opt-in to or
opt-out of such sharing. We
may also share the
information we have
collected about you,
including Personal
Information, as disclosed at
the time you provide your
information, with your
consent, as otherwise
described in this Privacy
Policy, or in the following
circumstances:
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
5. THIRD PARTY
ANALYTICS PROVIDERS, AD
SERVERS AND SIMILAR THIRD
PARTIES
We may work
with advertising
agencies and vendors who
use technology to help
us understand how people
use our Site. These
vendors may use
technologies to serve
you advertisements that
may interest you. You
can choose to opt out of
receiving interest-based
advertising.
Upwork works with (or
may in the future work with)
network advertisers, ad
agencies, analytics service
providers and other vendors
to provide us with
information regarding
traffic on the Service,
including pages viewed and
the actions taken when
visiting the Service; to
serve our advertisements on
other web sites, within
mobile apps and elsewhere
online; and to provide us
with information regarding
the use of the Service and
the effectiveness of our
advertisements. Our service
providers may collect
certain information about
your visits to and activity
on the Service as well as
other websites or services,
they may set and access
their own tracking
technologies on your device
(including cookies and web
beacons), and may use that
information to show you
targeted advertisements.
Some of these parties may
collect Personal Information
when you visit the Service
or other online websites and
services. We may also share
certain Non-Identifying
Information with these
parties, including Hashed
Information, in connection
with the services they
provide to us. If you wish
to opt out of interest-based
advertising, click here (or if located in the
European Union, click
here). If you choose to
opt out, please note you
will continue to receive
generic ads.
While we may use a
variety of service providers
to perform advertising
services, some of these
companies are members of the
Network Advertising
Initiative (“NAI”) or
the Digital Advertising
Alliance (“DAA”)
Self-Regulatory Program for
Online Behavioral
Advertising. You may want to
visit http://www.networkadvertising.org/managing/opt_out.asp, which provides
information regarding
targeted advertising and the
“opt-out” procedures of NAI
members. You may also want
to visit or http://www.aboutads.info/choices/, which provides
information regarding
targeted advertising and
offers an “opt-out” by
participating companies in
the DAA Self-Regulatory
Program.
6. YOUR CHOICES AND
RIGHTS
You have
certain choices
regarding how we may
communicate with you.
Registered Upwork
Users may update their
choices regarding the types
of communications you
receive from us through your
online account. You also may
opt-out of receiving
marketing emails from us by
following the opt-out
instructions provided in
those emails. Please note
that we reserve the right to
send you certain
communications relating to
your account or use of the
Service (for example,
administrative and service
announcements) via email and
other means and these
transactional account
messages may be unaffected
if you opt-out from
receiving marketing
communications. You may
opt-out of receiving text
messages by replying “STOP”
to any text message
received. Registered Upwork
Users who access the Service
by using an Upwork mobile
application may, with
permission, receive push
notifications. Similarly,
registered Upwork Users who
access the Service by using
certain desktop browsers
may, with permission,
receive push notifications.
Notification preferences can
be modified in the settings
menu for the mobile
application or the
applicable browser.
All Users may
request access to or
correction of any
Personal Information we
have about them or
delete their account
and/or request deletion
of all Personal
Information we have
about them. In certain
jurisdictions, Users may
have certain rights with
regard to their Personal
Information. We will
honor User requests to
the extent we can
reasonably do so and as
required by law, but
some information will
remain on the Services,
such as information you
posted publicly.
Upon request Upwork
will provide you with
information about whether we
hold any of your personal
information. You are
responsible for maintaining
the accuracy of the
information you submit to
us, such as your contact
information. You may access,
correct, or request deletion
of your personal information
by making updates to that
information or by contacting
Upwork through your online
account. If you request to
access all personal
information you’ve
submitted, we will respond
to your request to access
within 30 days. If you
completely delete all such
information, then your
account may become
deactivated. If your account
is deactivated or you ask to
close your account, you will
no longer be able to use the
Service. If you would like
us to delete your account in
our system, you can do so
through the Upwork Service
(once you logged in, visit
settings / user settings,
and then click on the close
my account link).
Depending on where you
are located, you may have
certain rights with regard
to your Personal Information
(including, in certain cases, under the Privacy Shield, described below). If
you are located in the
European Economic Area (“EEA”),
in addition to the rights
described above, you may
contact us at the contact
information provided below
to (1) request a restriction
on the processing of your
Personal Information, (2)
object to the processing of
your Personal Information,
or (3) exercise other rights
with respect to your
Personal Information. Upwork
uses automated means to
calculate the Job Success
Score of Freelancers. If you
believe that our services
have miscalculated your Job
Success Score, please email
us at gdpr-dsar@upwork.com for
assistance. We may be able
to assist you by conducting
a manual review of your Job
Success Score, such as by
assessing whether the
information you’ve provided
us is accurate. While we
strongly encourage you to
first raise any questions or
concerns about your Personal
Information directly with
us, you have a right to
lodge a complaint with the
relevant supervisory
authority.
We will use
commercially reasonable
efforts to honor your
requests for deletion;
however, certain information
will actively persist on the
Service even if you close
your account, including
information in your Work
Diaries and messages you
posted to the Service. In
addition, your Personal
Information may remain in
our archives and information
you update or delete, or
information within a closed
account, may persist
internally for our
administrative purposes, to
the extent permitted by law.
It is not always possible to
completely remove or delete
information from our
databases. In addition, we
typically will not remove
information you posted
publicly through or on the
Service. Bear in mind that
neither you nor Upwork can
delete all copies of
information that has been
previously shared with
others on the Service.
7. SECURITY
We take a
number of steps to
protect your data, but
no security is
guaranteed.
Upwork takes
commercially reasonable
steps to help protect and
secure the information it
collects and stores about
Upwork Users. All access to
the Site is encrypted using
industry-standard transport
layer security technology (“TLS”).
When you enter sensitive
information (such as tax
identification number), we
encrypt the transmission of
that information using
secure socket layer
technology (“SSL”).
We also use HTTP strict
transport security to add an
additional layer of
protection for our Upwork
Users. But remember that no
method of transmission over
the Internet, or method of
electronic storage, is 100%
secure. Thus, while we
strive to protect your
Personal Information, Upwork
cannot ensure and does not
warrant the security of any
information you transmit to
us.
8. INTERNATIONAL
TRANSFER OF PERSONAL
INFORMATION
Because we are
a U.S. company, we
process and store your
information in the
United States and our
service providers may
process and store it
elsewhere.
Upwork is a U.S.
company. If you are located
outside the United States
and choose to provide
information to us, Upwork
transfers Personal
Information to the United
States for processing, and
our service providers may
process Personal Information
in the United States and
elsewhere. These countries
may not have the same data
protection laws as the
country in which you
initially provided the
information. When we
transfer your information to
the United States, we will
protect it as described in
this Privacy Policy.
When we transfer
Personal Information from
territories in the EEA or
with similar laws to our
affiliates or service
providers in the United
States and elsewhere outside
the EEA, we rely on approved
data transfer mechanisms,
including standard
contractual clauses approved
by the European Commission
and the Privacy Shield, as
described below. You may
request a copy of the
standard contractual clauses
relevant to your Personal
Information, if any, using
the contact information
below.
9. PRIVACY SHIELD
NOTICE
As a business subject
to the investigatory and
enforcement authority of the
United States Federal Trade
Commission, Upwork has
certified that its U.S.
operations adhere to the
EU-U.S. and Swiss-U.S.
Privacy Shield Frameworks (“Privacy
Shield”) with
respect to the Personal
Information that Upwork
receives in reliance on the
Privacy Shield. Our Privacy
Shield certification is
available at https://www.privacyshield.gov/list. To learn more about
the Privacy Shield program,
please visit https://www.privacyshield.gov.
When Upwork
receives Personal
Information under the
Privacy Shield and then
transfers it to a third
party service provider
acting as an agent on
Upwork’s behalf, Upwork may
have certain responsibility
under the Privacy Shield if
both (i) the agent processes
the information in a manner
inconsistent with the
Privacy Shield and (ii)
Upwork is responsible for
the event giving rise to the
damage.
Covered European
residents should contact
Upwork at the contact
information below regarding
Upwork’s compliance with the
Privacy Shield. Upwork will
attempt to answer your
questions and satisfy your
concerns in a timely and
complete manner as soon as
possible. If, after
discussing the matter with
Upwork, your issue or
complaint is not resolved,
Upwork has agreed to
participate in the Privacy
Shield independent dispute
resolution mechanisms listed
below, free of charge to
you. PLEASE CONTACT UPWORK
FIRST.
For other Personal
Information Upwork receives
under the Privacy Shield,
Upwork has committed to
refer unresolved privacy
complaints under the EU-U.S.
and Swiss-U.S. Privacy
Shield Principles to an
independent dispute
resolution mechanism, JAMS
Privacy Shield Dispute
Resolution, operated by
JAMS. If you do not receive
timely acknowledgment of
your complaint, or if your
complaint is not
satisfactorily addressed,
please visit https://www.jamsadr.com/eu-us-privacy-shield
for more
information and to file a
complaint.
If your complaint
still is not resolved
through these channels,
under limited circumstances,
an additional binding
arbitration option may be
available before a Privacy
Shield panel, as described
at privacyshield.gov. Every
individual also has a right
to lodge a complaint with
the relevant supervisory
authority.
10. LINKS TO OTHER
SITES
Our Service contains
links to other websites. If
you choose to click on a
third party link, you will
be directed to that third
party’s website. The fact
that we link to a website is
not an endorsement,
authorization or
representation of our
affiliation with that third
party, nor is it an
endorsement of their privacy
or information security
policies or practices. We do
not exercise control over
third party websites. These
other websites may place
their own cookies or other
files on your computer,
collect data or solicit
Personal Information from
you. We encourage you to
read the privacy policies or
statements of the other
websites you visit.
11. PUBLIC PROFILE
The profile you create
on our Site will be publicly
accessible unless otherwise
indicated. You may change
the privacy settings of your
profile through your account
portal.
12. PHISHING
Phishing websites
imitate legitimate websites
in order to obtain personal
or financial information.
Identity theft and the
practice currently known as
“phishing” are of great
concern to Upwork. For more
information about phishing,
visit the website of the
Federal Trade Commission at
http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you
believe you have received an
email or had a similar
interaction with a third
party pretending to be
Upwork, please report it at
https://support.upwork.com.
13. CALIFORNIA
RESIDENTS – YOUR CALIFORNIA
PRIVACY RIGHTS
We allow you
to choose whether we
share your personal
information with third
parties for their own
marketing purposes.
Pursuant to California
Civil Code Section 1798.83,
California residents who
provide us with personal
information in obtaining
products or services for
personal, family, or
household use are entitled
to request and obtain from
us, one time per calendar
year, information about the
customer information we
shared, if any, with other
businesses for their own
direct marketing uses.
Alternatively, the law
provides that a company may
comply, as Upwork does, by
disclosing in its privacy
policy that it provides
consumers choice (opt-in or
opt-out) regarding sharing
Personal Information with
third parties for those
third parties’ direct
marketing purposes, and
information on how to
exercise that choice. As
stated above in this Privacy
Policy, Upwork provides you
choice prior to sharing your
personal information with
third parties for their
direct marketing purposes.
If you do not opt-in or if
you choose to opt-out at the
time Upwork offers that
choice, Upwork does not
share your information with
that identified third party
for its direct marketing
purposes.
If you are a
California resident and you
have questions about our
practices with respect to
sharing information with
third parties for their
direct marketing purposes
and your ability to exercise
choice, please contact us
using the contact
information below.
You must put the
statement “Your California
Privacy Rights” in the
subject field of your email
or include it in your
writing if you choose to
write to us at the
designated mailing address.
You must include your name,
street address, city, state,
and ZIP code. We will
respond to you at your
mailing address or, at our
option, your email address.
We are not responsible for
notices that are not labeled
or sent properly, or do not
have complete information.
14. CHANGES TO THIS
POLICY
We may change
this Privacy Policy. If
we make material
changes, we will provide
notice.
Upwork may update this
Privacy Policy at any time
and any changes will be
effective upon posting. In
the event that there are
material changes to the way
we treat your Personal
Information, we will display
a notice through the
Services prior to the change
becoming effective. We may
also notify you by email, in
our discretion. However, we
will use your Personal
Information in a manner
consistent with the Privacy
Policy in effect at the time
you submitted the
information, unless you
consent to the new or
revised policy.
15. CONTACTING US
If you have any
questions about this Privacy
Policy, please contact us at
https://support.upwork.com or by mail addressed
to Upwork, Attn: Legal, 441
Logue Ave., Mountain View,
CA 94043.
Effective April 18, 2018 to May 25, 2018
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
By accessing or
using the Service, you
consent to the information
collection, disclosure and
use practices described in
this Privacy Policy. Please
note that certain features
or services referenced in
this Privacy Policy may not
be offered on the Service at
all times. Please also
review our Terms
of Service, which governs your
use of the Service, and
which is accessible at
/legal/terms/.
TABLE
OF CONTENTS
- Information
Collection
- Information You Provide to Us
- Information Received from Third Parties
- Information Collected from Users Automatically
- How We Respond to Do Not Track Signals
- Work Diaries and Work View
- User Profiles
- Community Forums
- Testimonials
- Work Listings Through the Service
- Feedback
- Email to Friends and Referral Program
- Social Networking Services
- Use and Retention of Information
- Information
Sharing and
Disclosure
- Information about Freelancers Shared with Clients and Agencies or Teams
- Information about Clients and Agencies Shared with Freelancers
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request That We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Opting Out
- Changing Your Information or Closing Your Account
- Security
- International Transfers of Personal Information
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1.
INFORMATION COLLECTION
Users of the Service may be Clients (anyone utilizing the Upwork platform to request services to be performed by a Freelancer) or
Freelancers (any company, individual user, or groups of associated individual users or companies utilizing the Upwork platform to offer services to Clients). Freelancers may also operate as an
Agency (a legally recognized entity with the ability to hire and/or contract) with other Freelancers.
Information
You Provide to Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“ Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
Information
Received from Third
Parties
We also may receive information about you from third parties. For example, we may supplement the information we collect with outside records or third parties may provide information in connection with a co-marketing agreement or at
your request (such as if you choose to sign in with a third-party service). If we combine the information we receive from others with information we collect through the Service, we will treat the combined information as described
in this Privacy Policy.
Information
Collected from Users
Automatically
We and our third party service providers, including analytics and third party content providers, may automatically collect certain information from you whenever you access or interact with the Service. This information may include,
among other information, the browser and operating system you are using, the URL or advertisement that referred you to the Service, the search terms you entered into a search engine that led you to the Service, areas within the Service
that you visited, and other information commonly shared when browsers communicate with websites. We may combine this automatically collected log information with other information we collect about you. We do this to improve services
we offer you, to improve marketing, analytics, and site functionality.
The information we collect also includes the Internet Protocol (“
IP”) address or other unique device identifier (“Device
Identifier”) for any device (computer, mobile phone, tablet, etc.) used to access the Service. A Device Identifier is a number that is automatically assigned or connected to the device you use to access the Service, and
our servers identify your device by its Device Identifier. Some mobile service providers may also provide us or our third party service providers with information regarding the physical location of the device used to access the Service.
The
technology used to
collect information
automatically from
Upwork Users may include
the following:
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You may be able to instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you may not be able to use all functionality of the Service.
For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and our marketing partners, affiliates, analytics, and service providers may use a variety of other technologies (such as tags) that collect similar information for security and fraud detection purposes and we may use
third parties to perform these services on our behalf.
HOW
WE RESPOND TO DO NOT TRACK
SIGNALS
Please note that your browser setting may allow you to automatically transmit a “Do Not Track” signal to websites and online service you visit. There is no consensus among industry participants as to what “Do Not Track” means in this
context. Like many websites and online services, Upwork does not alter its practices when it receives a “Do Not Track” signal from a visitor’s browser. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.
Work
Diaries and Work View As part of the Service, we collect information about a Freelancer’s work on a project for a Client. This feature is known as Work Diary. Work Diaries include information provided by the Freelancer,
such as a memo, as well as automatically gathered information about work on a project, such as number of mouseclicks and keyboard strokes and regularly taken screenshots (which may include a webcam picture of you if you have not
disabled this feature in your settings). In order to use Work Diaries, you must download and install the Team App software from www.upwork.com.
We will share information contained in Work Diaries with the relevant Client and with any manager or administrator of any applicable Freelancer Agency. We inform Freelancers each time we capture information for Work Diary. As set forth
in our Terms of Service, End User License Agreement, and help pages on the Site, a Freelancer may choose to block or delete the screen shot and associated data for a recorded work interval, but then the Freelancer may not be paid
for that work interval. Upwork may use general information from Work Diaries for statistical analysis, product development, marketing and research.
User
Profiles You may have the opportunity to create a profile, which consists of information about you, and may include Personal Information, photographs, examples of your work, information on work previously performed
via the Service and outside the Service, skills, tests taken, test scores, hourly pay rates, feedback/rating information and other information, including your username (“Profile”). The information in your Profile
may be visible to all Upwork Users and the general public subject to the privacy choices you make within your Upwork Profile. You may edit certain information in your Profile via your account and may choose to limit who is able to
view certain content you post to your Profile. Clients and Agencies of associated individual users or companies may also have the opportunity to create an organization Profile. If, in any case, you believe that an unauthorized profile
has been created about you, you can request for it to be removed by contacting us at
https://support.upwork.com.
Community
Forums The Service may provide you the opportunity to participate and post content publicly in forums, on blogs, through interactive features Upwork and through other communication functionality (“
Community
Forums”). You may choose, through such features or otherwise, to submit or post questions, comments, or other content (collectively, “User
Forum Content”). Please note that certain information, such as your name and Profile may be publicly displayed on the Service along with your User Forum Content. Please note that your use of Community Forums is subject
to the Upwork Forum Rules and our Terms of Service.
Note
that anything you post to a
Community Forum is public
— others will have
access to your User Forum
Content and may use it or
share it with third parties.
If you choose to voluntarily
disclose Personal
Information in your User
Forum Content or use
Community Forums to link to
your Profile, that
information will be
considered public
information and the
protections of this Privacy
Policy will not apply.
To
request
removal of your personal
information from our blog or
community forum, contact us
at https://support.upwork.com. In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to do so and why.
Testimonials We display personal testimonials of satisfied customers on our Service, in addition to other endorsements. With your consent we may post your testimonial along with your name.
If you wish to update or delete your testimonial, you can contact us at https://support.upwork.com.
Work
Listings Through the
Service
If you choose to post a work listing via the Service as a Client, the contents of such listing will be viewable publicly, unless you designate the listing as only viewable through the Service or as private using the settings available
on the applicable website. Work listings include information such as budget, location, history of work listing(s) by the Client, the names of other Freelancers performing work for the Client, Client feedback and rating information
and timing of project performance.
Feedback
We collect feedback from Upwork Users about their experience with other Upwork Users of our Service. Please note that any feedback you provide via the Service or feedback provided about you is publicly viewable via the Service. On
very rare occasions, we may remove feedback pursuant to the relevant provisions of our Terms of Service, including the Terms of Use.
Email
to Friends and Referral
Program
Upwork lets you send project postings to friends via email. Upwork also offers the ability to send friends emails about providing or purchasing services through the Service. If you choose to use either feature, your friend’s email
address will be used to send the requested posting and your email address will be used to copy you on the message to your friend or to send the message on your behalf. Upwork stores this information for the sole purpose of sending
this one-time email and tracking the success of our referral program.
Your friend may contact us at support.upwork.com to request that we remove this information from our database.
Social
Networking Services
You may register to join the Service directly via the Service or by logging into your account with a third party social networking service (“SNS”) via our Service (e.g., Facebook, LinkedIn and other third party services
that let you sign in using your existing credentials with those services). If you choose to register via an SNS, or to later link your account with the Service to your account with an SNS, we will use the Personal Information you
have provided to the SNS (such as your name, email address, gender and other information you make publicly available via the SNS) to create your account. Note that the information we collect from and through an SNS may depend on
the privacy settings you have set with the SNS and the permissions you grant to us in connection with linking your account with the Service to your account with an SNS. Other than what we may share with the SNS as described below,
the Personal Information an SNS has about you is obtained by the SNS independent of our Service, and Upwork is not responsible for it.
The Upwork Service also may permit additional interactions between it and a third party website, service, or other content provider, such as enabling you to “like” or share content to a third party SNS. If you choose to “like” or share
content, or to otherwise share information from or via our Service with a third party site or service, that information may be publicly displayed, and the third party may have access to information about you and your use of our Service
(and we may have access to information about you from that third party). These features may collect your IP address, which page you are visiting on our site, and may set a cookie to enable the feature to function properly. Your interactions
with third parties through an SNS or similar features are governed by the respective privacy policies of those third parties.
You represent that you are entitled to use your SNS account for the purposes described herein without breach by you of any of the terms and conditions that govern the SNS, and without obligating Upwork to pay any fees or making Upwork
subject to any usage limitations imposed by such SNS. You can disable the link between your Upwork account and your SNS account at any time though the “Settings” section of our Service. Please note that your relationship with any
SNS is governed solely by your agreement(s) with such SNS. If your SNS account terminates, then functions enabled through the link between your Upwork account and your SNS account will terminate as well.
2. USE
AND
RETENTION OF INFORMATION
We use
information collected
through the Service to
provide and improve the
Service, process your
requests, prevent fraud,
provide you with
information and
advertising that may
interest you, comply
with the law, and as
otherwise permitted with
your consent.
WE USE INFORMATION WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid and for compliance and internal business purposes;
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Opting Out section, below;
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online;
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent;
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports;
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users; and
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
UNLESS YOU REQUEST THAT WE DELETE CERTAIN INFORMATION (SEE CHANGING YOUR
INFORMATION OR CLOSING YOUR
ACCOUNT BELOW), WE RETAIN THE INFORMATION WE COLLECT FOR AT LEAST 5 YEARS AND MAY RETAIN THE INFORMATION FOR AS LONG AS NEEDED FOR OUR BUSINESS AND LEGAL PURPOSES.
3.
INFORMATION SHARING AND
DISCLOSURE
We may share aggregated Non-Identifying Information and we may otherwise disclose Non-Identifying Information (including, without limitation, Hashed Information) to third parties. We do not share your Personal Information with third
parties for those third parties’ marketing purposes unless we first provide you with the opportunity to opt-in to or opt-out of such sharing. We may also share the information we have collected about you, including Personal Information,
as disclosed at the time you provide your information, with your consent, as otherwise described in this Privacy Policy, or in the following circumstances:
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information From Third Parties or Request That We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal
and Investigative
Purposes:
Upwork will share information with government agencies as required by law, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties
to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal
process (including but not limited to subpoenas), at the request of governmental authorities or other third parties conducting an investigation, to protect the property and rights of Upwork or a third party, to protect the safety
of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork
Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., subsidiaries, and affiliates, primarily for business and operational purposes. We may sell, transfer or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy. You will be notified via email and/or a prominent notice on our website of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
- Sweepstakes, Contests and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
4. THIRD
PARTY ANALYTICS PROVIDERS,
AD SERVERS AND SIMILAR THIRD
PARTIES
Upwork works with (or may in the future work with) network advertisers, ad agencies, analytics service providers and other vendors to provide us with information regarding traffic on the Service, including pages viewed and the actions
taken when visiting the Service; to serve our advertisements on other web sites, within mobile apps and elsewhere online; and to provide us with information regarding the use of the Service and the effectiveness of our advertisements.
Our service providers may collect certain information about your visits to and activity on the Service as well as other websites or services, they may set and access their own tracking technologies on your device (including cookies and web beacons), and may use that information to show you targeted advertisements. Some of these parties may collect Personal Information when you visit the Service or other online websites and services. We may also share
certain Non-Identifying Information with these parties, including Hashed Information, in connection with the services they provide to us.
While we may use a variety of service providers to perform advertising services, some of these companies are members of the Network Advertising Initiative (“
NAI”) or the Digital Advertising Alliance (“DAA”) Self-Regulatory Program for Online Behavioral Advertising. You may want to visit http://www.networkadvertising.org/managing/opt_out.asp, which provides information regarding targeted advertising and the “opt-out” procedures of NAI members. You may also want to visit or
http://www.aboutads.info/choices/, which provides information regarding targeted advertising and offers an “opt-out” by participating companies in the DAA Self-Regulatory Program. You may also
opt-out by clicking here (or if located in the European Union click here). Please note that opting out through these mechanisms does not opt you out of being served advertising, and you will continue to receive generic ads while online.
5. YOUR
CHOICES AND OPTING OUT
Registered Upwork Users may update their choices regarding the types of communications you receive from us through your online account. You also may opt-out of receiving marketing emails from us by following the opt-out instructions
provided in those emails. Please note that we reserve the right to send you certain communications relating to your account or use of the Service (for example, administrative and service announcements) via email and other means and
these transactional account messages may be unaffected if you opt-out from receiving marketing communications. You may opt-out of receiving text messages by replying “STOP” to any text message received. Registered Upwork Users who
access the Service by using an Upwork mobile application may, with permission, receive push notifications. Similarly, registered Upwork Users who access the Service by using certain desktop browsers may, with permission, receive
push notifications. Notification preferences can be modified in the settings menu for the mobile application or the applicable browser.
6.
CHANGING YOUR INFORMATION OR
CLOSING YOUR ACCOUNT
Upon request Upwork will provide you with information about whether we hold any of your personal information. You are responsible for maintaining the accuracy of the information you submit to us, such as your contact information. You
may access, correct, or request deletion of your personal information by making updates to that information or by contacting Upwork through your online account. If you request to access all personal information you’ve submitted,
we will respond to your request to access within 30 days. If you completely delete all such information, then your account may become deactivated. If your account is deactivated or you ask to close your account, you will no longer
be able to use the Service. If you would like us to delete your account in our system, you can do so through the Upwork Service (once you logged in, visit settings/ user settings, and then click on the close my account link). We
will use commercially reasonable efforts to honor your request; however, certain information will actively persist on the Service even if you close your account, including information in your Work Diaries and messages you posted
to the Service. In addition, your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally or for our administrative purposes. It is not
always possible to completely remove or delete information from our databases. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor Upwork can delete
all copies of information that has been previously shared with others on the Service.
7.
SECURITY
Upwork takes commercially reasonable steps to help protect and secure the information it collects and stores about Upwork Users. All access to the Site is encrypted using industry-standard transport layer security technology (TLS).
When you enter sensitive information (such as tax identification number), we encrypt the transmission of that information using secure socket layer technology (SSL). We also use HTTP strict transport security to add an additional
layer of protection for our Upwork Users. But remember that no method of transmission over the Internet, or method of electronic storage, is 100% secure. Thus, while we strive to protect your personal data, Upwork cannot ensure and
does not warrant the security of any information you transmit to us.
8.
INTERNATIONAL TRANSFER OF
PERSONAL INFORMATION
Upwork is a United States company. If you are located outside the United States and choose to provide information to us, Upwork transfers Personal Information to the United States for processing. The U.S. may not have the same data
protection laws as the country in which you initially provided the information. When we transfer your information to the U.S., we will protect it as described in this Privacy Policy. By visiting the Service, or providing Upwork with
any information, you fully understand and unambiguously consent to this transfer, processing and storage of your information in the United States.
Upwork protects personally identifiable information from residents of the European Union, other European Economic Area countries, and Switzerland in accordance with applicable law (including, as applicable, reliance upon your consent
and EU-approved standard contract clauses).
9. LINKS
TO OTHER SITES
Our Service contains links to other websites. If you choose to click on a third party link, you will be directed to that third party’s website. The fact that we link to a website is not an endorsement, authorization or representation
of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies
or other files on your computer, collect data or solicit Personal Information from you. We encourage you to read the privacy policies or statements of the other websites you visit.
10.
PUBLIC
PROFILE
The profile you create on our site will be publicly accessible unless otherwise indicated. You may change the privacy settings of your profile through your account portal.
11.
PHISHING
Phishing websites imitate legitimate websites in order to obtain personal or financial information. Identity theft and the practice currently known as “phishing” are of great concern to Upwork. For more information about phishing,
visit the website of the Federal Trade Commission at http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you believe you have received an email or had a similar interaction with a third party pretending to be Upwork, please report it at https://support.upwork.com.
12.
CALIFORNIA RESIDENTS – YOUR
CALIFORNIA PRIVACY RIGHTS
Pursuant to California Civil Code Section 1798.83, California residents who provide us with personal information in obtaining products or services for personal, family, or household use are entitled to request and obtain from us, one
time per calendar year, information about the customer information we shared, if any, with other businesses for their own direct marketing uses. Alternatively, the law provides that a company may comply, as Upwork does, by disclosing
in its privacy policy that it provides consumers choice (opt-in or opt-out) regarding sharing Personal Information with third parties for those third parties’ direct marketing purposes, and information on how to exercise that choice.
As stated above in this Privacy Policy, Upwork provides you choice prior to sharing your personal information with third parties for their direct marketing purposes. If you do not opt-in or if you choose to opt-out at the time Upwork
offers that choice, Upwork does not share your information with that identified third party for its direct marketing purposes.
If you are a California resident and you have questions about our practices with respect to sharing information with third parties for their direct marketing purposes and your ability to exercise choice, please send your request to
the following email address: legal@upwork.com or write to us at the following mailing address:
Upwork
Attn: Legal
441 Logue Ave.
Mountain View, CA 94043
Attn: Legal
441 Logue Ave.
Mountain View, CA 94043
You must put the statement “Your California Privacy Rights” in the subject field of your email or include it in your writing if you choose to write to us at the designated mailing address. You must include your name, street address,
city, state, and ZIP code. We will respond to you at your mailing address or, at our option, your email address. We are not responsible for notices that are not labeled or sent properly, or do not have complete information.
13.
CHANGES TO THIS POLICY
Upwork may update this Privacy Policy at any time and any changes will be effective upon posting. In the event that there are material changes to the way we treat your Personal Information, we will display a notice through the Services
prior to the change becoming effective. We may also notify you by email, in our discretion. However, we will use your Personal Information in a manner consistent with the Privacy Policy in effect at the time you submitted the information,
unless you consent to the new or revised policy.
14.
CONTACTING US
If you have any questions about this Privacy Policy, please contact us at https://support.upwork.com; or by mail addressed to Upwork, Attn: Legal, 441 Logue Ave., Mountain View, CA 94043.
Effective March 2, 2018 to April 18, 2018
DownloadTable of Contents
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Upwork Global Inc.
(“Upwork”) provides this
Privacy Policy to let you
know our policies and
procedures regarding the
collection, use and
disclosure of information
through www.upwork.com (the “Site”), and any other
websites, features,
applications, widgets or
online services that are
owned or controlled by
Upwork and that post a link
to this Privacy Policy
(together with the Site, the
“Service”), as well as any
information Upwork collects
offline in connection with
the Service. It also
describes the choices
available to you regarding
the use of, your access to,
and how to update and
correct your personal
information. Note
that we combine the
information we collect from
you from the Site, through
the Service generally, or
offline.
By accessing or
using the Service, you
consent to the information
collection, disclosure and
use practices described in
this Privacy Policy. Please
note that certain features
or services referenced in
this Privacy Policy may not
be offered on the Service at
all times. Please also
review our Terms
of Service, which governs your
use of the Service, and
which is accessible at
/legal/terms/.
TABLE
OF CONTENTS
- Information
Collection
- Information You Provide to Us
- Information Received from Third Parties
- Information Collected from Users Automatically
- How We Respond to Do Not Track Signals
- Work Diaries and Work View
- User Profiles
- Community Forums
- Testimonials
- Work Listings Through the Service
- Feedback
- Email to Friends and Referral Program
- Social Networking Services
- Use and Retention of Information
- Information
Sharing and
Disclosure
- Information about Freelancers Shared with Clients and Agencies or Teams
- Information about Clients and Agencies Shared with Freelancers
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request That We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Opting Out
- Changing Your Information or Closing Your Account
- Security
- International Transfers of Personal Information
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
1. INFORMATION COLLECTION
Users of the Service may be Clients (anyone utilizing the Upwork platform to request services to be performed by a Freelancer) or
Freelancers (any company, individual user, or groups of associated individual users or companies utilizing the Upwork platform to offer services to Clients). Freelancers may also operate as an
Agency (a legally recognized entity with the ability to hire and/or contract) with other Freelancers.
Information
You Provide to Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“ Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed
Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your
activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First, last name and email address when you provide it to us for the purpose of adding your contacts to a message room.
Information
Received from Third
Parties
We also may receive information about you from third parties. For example, we may supplement the information we collect with outside records or third parties may provide information in connection with a co-marketing agreement or at
your request (such as if you choose to sign in with a third-party service). If we combine the information we receive from others with information we collect through the Service, we will treat the combined information as described
in this Privacy Policy.
Information
Collected from Users
Automatically
We and our third party service providers, including analytics and third party content providers, may automatically collect certain information from you whenever you access or interact with the Service. This information may include,
among other information, the browser and operating system you are using, the URL or advertisement that referred you to the Service, the search terms you entered into a search engine that led you to the Service, areas within the Service
that you visited, and other information commonly shared when browsers communicate with websites. We may combine this automatically collected log information with other information we collect about you. We do this to improve services
we offer you, to improve marketing, analytics, and site functionality.
The information we collect also includes the Internet Protocol (“
IP”) address or other unique device identifier (“Device
Identifier”) for any device (computer, mobile phone, tablet, etc.) used to access the Service. A Device Identifier is a number that is automatically assigned or connected to the device you use to access the Service, and
our servers identify your device by its Device Identifier. Some mobile service providers may also provide us or our third party service providers with information regarding the physical location of the device used to access the Service.
The
technology used to
collect information
automatically from
Upwork Users may include
the following:
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You may be able to instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you may not be able to use all functionality of the Service.
For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and our marketing partners, affiliates, analytics, and service providers may use a variety of other technologies (such as tags) that collect similar information for security and fraud detection purposes and we may use
third parties to perform these services on our behalf.
HOW
WE RESPOND TO DO NOT TRACK
SIGNALS
Please note that your browser setting may allow you to automatically transmit a “Do Not Track” signal to websites and online service you visit. There is no consensus among industry participants as to what “Do Not Track” means in this
context. Like many websites and online services, Upwork does not alter its practices when it receives a “Do Not Track” signal from a visitor’s browser. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.
Work
Diaries and Work View As part of the Service, we collect information about a Freelancer’s work on a project for a Client. This feature is known as Work Diary. Work Diaries include information provided by the Freelancer,
such as a memo, as well as automatically gathered information about work on a project, such as number of mouseclicks and keyboard strokes and regularly taken screenshots (which may include a webcam picture of you if you have not
disabled this feature in your settings). In order to use Work Diaries, you must download and install the Team App software from www.upwork.com.
We will share information contained in Work Diaries with the relevant Client and with any manager or administrator of any applicable Freelancer Agency. We inform Freelancers each time we capture information for Work Diary. As set forth
in our Terms of Service, End User License Agreement, and help pages on the Site, a Freelancer may choose to block or delete the screen shot and associated data for a recorded work interval, but then the Freelancer may not be paid
for that work interval. Upwork may use general information from Work Diaries for statistical analysis, product development, marketing and research.
User
Profiles You may have the opportunity to create a profile, which consists of information about you, and may include Personal Information, photographs, examples of your work, information on work previously performed
via the Service and outside the Service, skills, tests taken, test scores, hourly pay rates, feedback/rating information and other information, including your username (“Profile”). The information in your Profile
may be visible to all Upwork Users and the general public subject to the privacy choices you make within your Upwork Profile. You may edit certain information in your Profile via your account and may choose to limit who is able to
view certain content you post to your Profile. Clients and Agencies of associated individual users or companies may also have the opportunity to create an organization Profile. If, in any case, you believe that an unauthorized profile
has been created about you, you can request for it to be removed by contacting us at
https://support.upwork.com.
Community
Forums The Service may provide you the opportunity to participate and post content publicly in forums, on blogs, through interactive features Upwork and through other communication functionality (“
Community
Forums”). You may choose, through such features or otherwise, to submit or post questions, comments, or other content (collectively, “User
Forum Content”). Please note that certain information, such as your name and Profile may be publicly displayed on the Service along with your User Forum Content. Please note that your use of Community Forums is subject
to the Upwork Forum Rules and our Terms of Service.
Note
that anything you post to a
Community Forum is public
— others will have
access to your User Forum
Content and may use it or
share it with third parties.
If you choose to voluntarily
disclose Personal
Information in your User
Forum Content or use
Community Forums to link to
your Profile, that
information will be
considered public
information and the
protections of this Privacy
Policy will not apply.
To
request
removal of your personal
information from our blog or
community forum, contact us
at https://support.upwork.com. In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to do so and why.
Testimonials We display personal testimonials of satisfied customers on our Service, in addition to other endorsements. With your consent we may post your testimonial along with your name.
If you wish to update or delete your testimonial, you can contact us at https://support.upwork.com.
Work
Listings Through the
Service
If you choose to post a work listing via the Service as a Client, the contents of such listing will be viewable publicly, unless you designate the listing as only viewable through the Service or as private using the settings available
on the applicable website. Work listings include information such as budget, location, history of work listing(s) by the Client, the names of other Freelancers performing work for the Client, Client feedback and rating information
and timing of project performance.
Feedback
We collect feedback from Upwork Users about their experience with other Upwork Users of our Service. Please note that any feedback you provide via the Service or feedback provided about you is publicly viewable via the Service. On
very rare occasions, we may remove feedback pursuant to the relevant provisions of our Terms of Service, including the Terms of Use.
Email
to Friends and Referral
Program
Upwork lets you send project postings to friends via email. Upwork also offers the ability to send friends emails about providing or purchasing services through the Service. If you choose to use either feature, your friend’s email
address will be used to send the requested posting and your email address will be used to copy you on the message to your friend or to send the message on your behalf. Upwork stores this information for the sole purpose of sending
this one-time email and tracking the success of our referral program.
Your friend may contact us at support.upwork.com to request that we remove this information from our database.
Social
Networking Services
You may register to join the Service directly via the Service or by logging into your account with a third party social networking service (“SNS”) via our Service (e.g., Facebook, LinkedIn and other third party services
that let you sign in using your existing credentials with those services). If you choose to register via an SNS, or to later link your account with the Service to your account with an SNS, we will use the Personal Information you
have provided to the SNS (such as your name, email address, gender and other information you make publicly available via the SNS) to create your account. Note that the information we collect from and through an SNS may depend on
the privacy settings you have set with the SNS and the permissions you grant to us in connection with linking your account with the Service to your account with an SNS. Other than what we may share with the SNS as described below,
the Personal Information an SNS has about you is obtained by the SNS independent of our Service, and Upwork is not responsible for it.
The Upwork Service also may permit additional interactions between it and a third party website, service, or other content provider, such as enabling you to “like” or share content to a third party SNS. If you choose to “like” or share
content, or to otherwise share information from or via our Service with a third party site or service, that information may be publicly displayed, and the third party may have access to information about you and your use of our Service
(and we may have access to information about you from that third party). These features may collect your IP address, which page you are visiting on our site, and may set a cookie to enable the feature to function properly. Your interactions
with third parties through an SNS or similar features are governed by the respective privacy policies of those third parties.
You represent that you are entitled to use your SNS account for the purposes described herein without breach by you of any of the terms and conditions that govern the SNS, and without obligating Upwork to pay any fees or making Upwork
subject to any usage limitations imposed by such SNS. You can disable the link between your Upwork account and your SNS account at any time though the “Settings” section of our Service. Please note that your relationship with any
SNS is governed solely by your agreement(s) with such SNS. If your SNS account terminates, then functions enabled through the link between your Upwork account and your SNS account will terminate as well.
2. USE AND RETENTION OF INFORMATION
WE USE INFORMATION WE COLLECT:
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid and for compliance and internal business purposes;
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Opting Out section, below;
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online;
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent;
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports;
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users; and
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
UNLESS YOU REQUEST THAT WE DELETE CERTAIN INFORMATION (SEE CHANGING YOUR
INFORMATION OR CLOSING YOUR
ACCOUNT BELOW), WE RETAIN THE INFORMATION WE COLLECT FOR AT LEAST 5 YEARS AND MAY RETAIN THE INFORMATION FOR AS LONG AS NEEDED FOR OUR BUSINESS AND LEGAL PURPOSES.
3. INFORMATION SHARING AND DISCLOSURE
We may share aggregated Non-Identifying Information and we may otherwise disclose Non-Identifying Information (including, without limitation, Hashed Information) to third parties. We do not share your Personal Information with third
parties for those third parties’ marketing purposes unless we first provide you with the opportunity to opt-in to or opt-out of such sharing. We may also share the information we have collected about you, including Personal Information,
as disclosed at the time you provide your information, with your consent, as otherwise described in this Privacy Policy, or in the following circumstances:
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information From Third Parties or Request That We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal
and Investigative
Purposes:
Upwork will share information with government agencies as required by law, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties
to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal
process (including but not limited to subpoenas), at the request of governmental authorities or other third parties conducting an investigation, to protect the property and rights of Upwork or a third party, to protect the safety
of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork
Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., subsidiaries, and affiliates, primarily for business and operational purposes. We may sell, transfer or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy. You will be notified via email and/or a prominent notice on our website of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
- Sweepstakes, Contests and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
4. THIRD PARTY ANALYTICS PROVIDERS, AD SERVERS AND SIMILAR THIRD PARTIES
Upwork works with (or may in the future work with) network advertisers, ad agencies, analytics service providers and other vendors to provide us with information regarding traffic on the Service, including pages viewed and the actions
taken when visiting the Service; to serve our advertisements on other web sites, within mobile apps and elsewhere online; and to provide us with information regarding the use of the Service and the effectiveness of our advertisements.
Our service providers may collect certain information about your visits to and activity on the Service as well as other websites or services, they may set and access their own tracking technologies on your device (including cookies and web beacons), and may use that information to show you targeted advertisements. Some of these parties may collect Personal Information when you visit the Service or other online websites and services. We may also share
certain Non-Identifying Information with these parties, including Hashed Information, in connection with the services they provide to us.
While we may use a variety of service providers to perform advertising services, some of these companies are members of the Network Advertising Initiative (“
NAI”) or the Digital Advertising Alliance (“DAA”) Self-Regulatory Program for Online Behavioral Advertising. You may want to visit http://www.networkadvertising.org/managing/opt_out.asp, which provides information regarding targeted advertising and the “opt-out” procedures of NAI members. You may also want to visit or
http://www.aboutads.info/choices/, which provides information regarding targeted advertising and offers an “opt-out” by participating companies in the DAA Self-Regulatory Program. You may also
opt-out by clicking here (or if located in the European Union click here). Please note that opting out through these mechanisms does not opt you out of being served advertising, and you will continue to receive generic ads while online.
5. YOUR CHOICES AND OPTING OUT
Registered Upwork Users may update their choices regarding the types of communications you receive from us through your online account. You also may opt-out of receiving marketing emails from us by following the opt-out instructions
provided in those emails. Please note that we reserve the right to send you certain communications relating to your account or use of the Service (for example, administrative and service announcements) via email and other means and
these transactional account messages may be unaffected if you opt-out from receiving marketing communications. You may opt-out of receiving text messages by replying “STOP” to any text message received. Registered Upwork Users who
access the Service by using an Upwork mobile application may, with permission, receive push notifications. Similarly, registered Upwork Users who access the Service by using certain desktop browsers may, with permission, receive
push notifications. Notification preferences can be modified in the settings menu for the mobile application or the applicable browser.
6. CHANGING YOUR INFORMATION OR CLOSING YOUR ACCOUNT
Upon request Upwork will provide you with information about whether we hold any of your personal information. You are responsible for maintaining the accuracy of the information you submit to us, such as your contact information. You
may access, correct, or request deletion of your personal information by making updates to that information or by contacting Upwork through your online account. If you request to access all personal information you’ve submitted,
we will respond to your request to access within 30 days. If you completely delete all such information, then your account may become deactivated. If your account is deactivated or you ask to close your account, you will no longer
be able to use the Service. If you would like us to delete your account in our system, you can do so through the Upwork Service (once you logged in, visit settings/ user settings, and then click on the close my account link). We
will use commercially reasonable efforts to honor your request; however, certain information will actively persist on the Service even if you close your account, including information in your Work Diaries and messages you posted
to the Service. In addition, your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally or for our administrative purposes. It is not
always possible to completely remove or delete information from our databases. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor Upwork can delete
all copies of information that has been previously shared with others on the Service.
7. SECURITY
Upwork takes commercially reasonable steps to help protect and secure the information it collects and stores about Upwork Users. All access to the Site is encrypted using industry-standard transport layer security technology (TLS).
When you enter sensitive information (such as tax identification number), we encrypt the transmission of that information using secure socket layer technology (SSL). We also use HTTP strict transport security to add an additional
layer of protection for our Upwork Users. But remember that no method of transmission over the Internet, or method of electronic storage, is 100% secure. Thus, while we strive to protect your personal data, Upwork cannot ensure and
does not warrant the security of any information you transmit to us.
8. INTERNATIONAL TRANSFER OF PERSONAL INFORMATION
Upwork is a United States company. If you are located outside the United States and choose to provide information to us, Upwork transfers Personal Information to the United States for processing. The U.S. may not have the same data
protection laws as the country in which you initially provided the information. When we transfer your information to the U.S., we will protect it as described in this Privacy Policy. By visiting the Service, or providing Upwork with
any information, you fully understand and unambiguously consent to this transfer, processing and storage of your information in the United States.
Upwork protects personally identifiable information from residents of the European Union, other European Economic Area countries, and Switzerland in accordance with applicable law (including, as applicable, reliance upon your consent
and EU-approved standard contract clauses).
9. LINKS TO OTHER SITES
Our Service contains links to other websites. If you choose to click on a third party link, you will be directed to that third party’s website. The fact that we link to a website is not an endorsement, authorization or representation
of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies
or other files on your computer, collect data or solicit Personal Information from you. We encourage you to read the privacy policies or statements of the other websites you visit.
10. PUBLIC PROFILE
The profile you create on our site will be publicly accessible unless otherwise indicated. You may change the privacy settings of your profile through your account portal.
11. PHISHING
Phishing websites imitate legitimate websites in order to obtain personal or financial information. Identity theft and the practice currently known as “phishing” are of great concern to Upwork. For more information about phishing,
visit the website of the Federal Trade Commission at http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you believe you have received an email or had a similar interaction with a third party pretending to be Upwork, please report it at https://support.upwork.com.
12. CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS
Pursuant to California Civil Code Section 1798.83, California residents who provide us with personal information in obtaining products or services for personal, family, or household use are entitled to request and obtain from us, one
time per calendar year, information about the customer information we shared, if any, with other businesses for their own direct marketing uses. Alternatively, the law provides that a company may comply, as Upwork does, by disclosing
in its privacy policy that it provides consumers choice (opt-in or opt-out) regarding sharing Personal Information with third parties for those third parties’ direct marketing purposes, and information on how to exercise that choice.
As stated above in this Privacy Policy, Upwork provides you choice prior to sharing your personal information with third parties for their direct marketing purposes. If you do not opt-in or if you choose to opt-out at the time Upwork
offers that choice, Upwork does not share your information with that identified third party for its direct marketing purposes.
If you are a California resident and you have questions about our practices with respect to sharing information with third parties for their direct marketing purposes and your ability to exercise choice, please send your request to
the following email address: legal@upwork.com or write to us at the following mailing address:
Upwork
Attn: Legal
441 Logue Ave.
Mountain View, CA 94043
Attn: Legal
441 Logue Ave.
Mountain View, CA 94043
You must put the statement “Your California Privacy Rights” in the subject field of your email or include it in your writing if you choose to write to us at the designated mailing address. You must include your name, street address,
city, state, and ZIP code. We will respond to you at your mailing address or, at our option, your email address. We are not responsible for notices that are not labeled or sent properly, or do not have complete information.
13. CHANGES TO THIS POLICY
Upwork may update this Privacy Policy at any time and any changes will be effective upon posting. In the event that there are material changes to the way we treat your Personal Information, we will display a notice through the Services
prior to the change becoming effective. We may also notify you by email, in our discretion. However, we will use your Personal Information in a manner consistent with the Privacy Policy in effect at the time you submitted the information,
unless you consent to the new or revised policy.
14. CONTACTING US
If you have any questions about this Privacy Policy, please contact us at https://support.upwork.com; or by mail addressed to Upwork, Attn: Legal, 441 Logue Ave., Mountain View, CA 94043.
Upwork Payroll Agreement
Effective November 1, 2018
DownloadTable of Contents
If a Client signs up to use Upwork Payroll, this Upwork Payroll Agreement (this
“Agreement”) applies to Client. Your use of the Site after the effective date will signify your acceptance of and agreement to this Agreement. Please refer to the Terms
of Service for the complete terms governing your usage of the Site and Site Services. Capitalized terms not defined in this Agreement have the meanings in the Terms of Services.
This Agreement is a binding legal agreement by and between Client (
“Client” and
“you”) and Upwork Global Inc. (“Upwork” or “we”) and supersedes and replaces all prior agreements between Client and Upwork concerning Upwork Payroll.
1.
UPWORK
PAYROLL STAFFING PROVIDER
When a Client uses Upwork Payroll, which is described on the Site here (
“Upwork Payroll”), a third-party staffing vendor will employ the Freelancer (the
“Staffing Provider”). Freelancer (if accepted for employment as described below) will become an employee of the Staffing Provider. The Staffing Provider will assign Freelancer to work for Client, and Client will be
responsible for supervising Freelancer. When, and only if, a Freelancer has been accepted for employment by the Staffing Provider and assigned to Client, Freelancer becomes a “Payroll
Employee” for purposes of this Agreement, but also remains a Freelancer under the Terms of Service.
Your ability to use Upwork Payroll may depend on certain factors, including, without limitation, the location of the Freelancer, the estimated length of the engagement, the wage to be paid, and the nature of the work to be performed.
A request to use Upwork Payroll may be rejected for any lawful reason.
2.
INTERNATIONAL PAYROLL
SERVICES
Upwork Payroll is currently only available for Freelancers who will work in the United States. Requests regarding international employment and associated fees can be addressed on a case-by-case basis by contacting upworkpayroll@upwork.com.
3.
HIRING
PROCESS
As a Client, you will select a Freelancer to be employed by the Staffing Provider and assigned to work for you via Upwork Payroll. No work can begin until the engagement is active on the Upwork Site, and Client is informed that the Freelancer
has started employment and may begin work. After Freelancer’s employment begins, Client will continue to pay for each Freelancer’s services through the Site unless Client pays the Opt-Out Fee.
4.
HIRING
DECISIONS; LIMITATIONS ON
HIRING
Client acknowledges and agrees that Client selects a Freelancer to become a Payroll Employee based upon Client’s determination that Freelancer possesses the skills, background, and education to satisfy the requirements of the assignment.
Upwork does not (a) select the Freelancer; (b) have the authority or ability to decide to engage or end the engagement of the Freelancer on behalf of Client; (c) make any independent evaluation or investigation or otherwise conduct
any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience; or (d) make any representations or warranties as to the skills, experience, background, or education of any Freelancer
or Payroll Employee. All information regarding a Payroll Employee posted on or to the Site or provided by Upwork is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork.
Upwork is not responsible for and shall have no liability for Client’s use of or reliance on any Freelancer information posted or provided by Upwork.
The Staffing Provider has the right not to hire a Freelancer for any lawful reason or no reason at all, including if the Freelancer does not meet the Staffing Provider’s standards for employment or the job is considered, in the Staffing
Provider’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. No Payroll Employee may be engaged to perform services that require the Payroll Employee to handle hazardous materials
or operate heavy machinery.
5.
DISCLAIMER OF LIABILITY FOR
UPWORK
Client
acknowledges and agrees that
Client and Freelancer are
solely responsible for
Freelancer Services and for
all work performed and Work
Product. Upwork provides no
express warranty of, will
have no implied warranty of,
and will have no
responsibility for, the
Staffing Provider’s
services, Freelancer
Services and/or Work
Product. Upwork expressly
disclaims all express and
implied warranties for
Freelancer Services and/or
Work Product, including,
without limitation,
warranties of
non-infringement,
merchantability, and fitness
for a particular purpose. As
between Upwork and Client,
Freelancer Services, Work
Product, and deliverables
are provided AS IS.
6.
UPWORK
PAYROLL SERVICES
The following are the services provided by the Staffing Provider for Payroll Employees assigned to Client: (a) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets; (b) collection,
payment, and reporting of all required taxes on such wages; (c) unemployment insurance and workers’ compensation coverage; (d) administration of legally required benefits, including health insurance, disability insurance, paid sick
leave, paid vacation, severance, notice or termination costs, retirement benefits or other welfare or pension benefits; and (e) administration of legally required leaves of absence, wage garnishments, and unemployment claims.
7.
WORK
ENVIRONMENT
Client acknowledges and agrees that neither Upwork nor the Staffing Provider will control the work environment in which a Payroll Employee will perform services for Client. Client will be solely responsible for ensuring that the work
environment is safe and free from harassment and discrimination as required by applicable law.
8.
PAYROLL
EMPLOYEE SUPERVISION AND
LIMITATIONS ON SCOPE OF
EMPLOYMENT
Client will be solely responsible for protecting its property, including by implementing and enforcing any agreements, policies or procedures to protect Client’s intellectual property and confidential information.
If Client assigns a Payroll Employee any supervisory duties or gives a Payroll Employee authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those
generally made by Client’s executives, officers, or directors, Client agrees that Client and Freelancer are solely responsible for any such decisions or actions by the Payroll Employee.
Client will inform Staffing Provider through Upwork (at upworkpayroll@upwork.com) if any Payroll Employee supervises other Client employees or Payroll Employees or will handle hazardous materials
or operate heavy machinery.
If a Payroll Employee is required to possess or maintain any license or be supervised by a supervisor with a special license, Client will be responsible for verifying such license and/or providing such supervision.
Client acknowledges and agrees that Payroll Employees are not employees of Upwork and that Upwork does not supervise or control Payroll Employees. Client further acknowledges and agrees that (a) Upwork does not have the power or ability
to require a Freelancer to start or stop work; (b) Upwork does not determine or control any term or condition of Freelancer’s employment (including, but not limited to, pay, work hours, work schedules, work locations, performance evaluations,
discipline, and termination); (c) Upwork merely provides the platform for Client to assign work to Freelancer and separately facilitates the relationship between Staffing Provider and Freelancer; and (d) Upwork is not an employer or
joint employer of the Freelancer.
9.
COMPLIANCE WITH LEGAL
REQUIREMENTS
With respect to all Payroll Employees, Client will comply with all applicable legal requirements, including without limitation all laws prohibiting discrimination, harassment, and retaliation and all laws concerning meal and rest breaks,
expense reimbursements, leave, and safety. Client will also comply with all reasonable directives by the Staffing Provider regarding the Payroll Employee.
Client will immediately inform Staffing Provider through Upwork (at upworkpayroll@upwork.com) of (a) any complaint by or against a Payroll Employee of harassment, discrimination, retaliation
or unlawful activity; or (b) any request by a Payroll Employee for a leave of absence or disability accommodation or any awareness by Client of a potential disability or need for leave or accommodation. Client will cooperate with Staffing
Provider to complete a prompt and thorough investigation of any complaint or to provide any leave or accommodation required by law.
All Payroll Employees must be paid on an hourly, non-exempt basis unless the Staffing Provider explicitly approves an exempt determination. If the Staffing Provider approves an exempt determination, the Client is solely responsible for
ensuring the determination remains appropriate. Client agrees never to request, encourage, or require Payroll Employees to work off the clock or without reporting time to the Staffing Provider. Client will not prohibit or discourage
any Payroll Employee from taking any meal or rest break authorized by law and/or by the Staffing Provider.
10.
PAYING
PAYROLL EMPLOYEES
10.1
General Payment Obligations
Your payments for Upwork Payroll are governed by the terms below, as well as the
Hourly
and Miscellaneous Payment
Agreement with Escrow
Instructions.
You recognize and agree that all hours recorded and submitted to the Staffing Provider by your Payroll Employees will automatically be deemed approved by you, and you authorize those hours to be paid by you. In addition, Payroll Employees
do not pay any Service Fees to Upwork. Instead, the Client pays the fees, as described below. Client also understands and agrees that Client is responsible for covering the cost of all Payroll Employee wages, even if, for example,
a Payroll Employee reports having worked more than the number of hours authorized by Client.
10.2
Client Bill Rate; Payroll
Employee Pay Rate
The total amount the Client pays is the
“Bill Rate”, which includes the Payroll Employee’s hourly rate or salary amount (the “Pay
Rate”) as well as Upwork fees. The Client will pay Upwork’s service fees for the use of the platform and the use of Upwork Payroll (collectively, the “Payroll
Service Fees”). The Payroll Service Fees are 23% of the Bill Rate. For example, if the Client Bill Rate is $25.00 per hour, the Payroll Employee’s Pay Rate would be $19.25. All fees are paid by the Client, and there
are no Upwork fees paid by Freelancers for engagements using Upwork Payroll.
To use Upwork Payroll, Client acknowledges and agrees that the Pay Rate on Upwork must be at least the minimum wage in the location where the Payroll Employee works.
In addition to the Bill Rate, Client acknowledges and agrees that it will be responsible for any additional costs required under applicable law. These additional costs vary based on the location of the Payroll Employee and include overtime
premiums, expense reimbursements, sick leave, vacation, severance, notice or termination costs, health insurance (including costs under the Affordable Care Act), and other similar benefits (collectively, “Additional
Costs”). For more information on these Additional Costs, please email upworkpayroll@upwork.com.
10.3
Funding and Making Payments
Client’s payments of amounts for wages, expense reimbursements, miscellaneous invoices, and bonuses are governed by the Hourly,
Bonus and Expense Payment
Agreement with Escrow
Instructions.
The workweek begins at 00:00 midnight UTC on Monday and ends at 23:59 UTC on Sunday. The workday begins at 00:00 midnight UTC and ends at 23:59 UTC. The Bill Rate (for employees who are paid by salary) or the Bill Rate multiplied by
the number of hours worked for the previous workweek, including any overtime premium pay (for employees paid by the hour) will be charged to Client’s Payment Method on the Monday following the end of the workweek or at such other time
as communicated by Upwork or Staffing Provider in writing. Additional Costs will be charged to Client’s Payment Method after Client is provided notice of the Additional Costs. Bonuses and expense reimbursements will be charged to Client’s
Payment Method after they are approved by Client.
11.
REQUIRED NOTIFICATIONS
Client can provide notices required under this Agreement to upworkpayroll@upwork.com.
Client will provide written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices
of IRS liens, and other forms of legal process affecting the payment of wages to a Payroll Employee.
Client will provide written notice within three days of any changes to the job description or work hours of a Payroll Employee, including any change from part-time to full-time status.
Client will provide written notice of the termination of a Payroll Employee’s assignment (whether initiated by Client or the Payroll Employee) by providing notice of the termination, including the Payroll Employee name, Client, and termination
date to upworkpayroll@upwork.com either (a) at least three business days before the Payroll Employee’s last day of employment; (b) immediately if employee quits without notice; or (c) such
longer time as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee resides or is legally organized. Failure to timely provide notice may result in additional
obligations to the Payroll Employee under applicable law, and Client agrees to pay any such costs.
Client also will provide Upwork notice, as provided above, if a Payroll Employee performs no work for Client for more than 10 consecutive Business Days due to any reason other than planned time off or legally required leave (which includes,
without limitation, legally required medical or family leave).
12.
INDEMNIFICATION
In addition to the indemnification obligations set forth in the User
Agreement, Client agrees to (a) release, indemnify, hold harmless, protect, and defend Upwork and its respective partners, employees, directors, officers, agents, affiliates, and subsidiaries (each an
“Indemnified Party”) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee; and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys’
fees and court costs), obligations, losses, and damages (whether joint or several and including special, consequential, compensatory, or punitive damages), whether arising in contract, tort, or otherwise, related to: (i) actual or
alleged acts, errors, or omissions (including, but not limited to, breaches of contract or violations of statutes, laws, rules, or regulations) by Client, its employees (including Payroll Employee(s)), partners, agents, affiliates,
members, subsidiaries, representatives, and officers; (ii) any breach of or failure to perform under this Agreement, including, but not limited to, Client’s failure to accurately or timely report wages, hours, expenses, and other reimbursements
owed a Payroll Employee or payment of taxes for which Client is responsible; (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime; (iv) actual or alleged errors in any timesheet(s) provided
to Upwork and/or the Staffing Provider; (v) Client’s failure to pay a timesheet properly submitted for payment by Payroll Employee; (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law
related to the employment of persons, including, but not limited to, any location’s laws with respect to the payment of wages or the treatment of employees, and including, without limitation, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, and Title VII of the 1964 Civil Rights Act (collectively,
“Employment Laws and
Regulations”), or (vii) the actual or alleged failure of Upwork or the Staffing Provider to comply in any respect with the Employment Laws and Regulations based in whole or in part (A) on any instruction(s),
act(s), or failure(s) to act of Client; or (B) on any incorrect, misleading, or false information provided by Client to Upwork or the Staffing Provider. This indemnification provision will survive the expiration or other termination
of this Agreement or Client’s relationship with Upwork.
13.
CHANGE
OF STAFFING PROVIDER
Upwork may enter into a contract with a new provider or multiple providers to act as the employer of Payroll Employees (“New
Company”) and may end or change contracts with existing providers. If requested as a result of such changes, Client will cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of
Upwork Payroll.
14.
TERMINATION OF UPWORK
PAYROLL
Without limiting Upwork’s ability to terminate services provided to Client under other Terms of Service, Upwork may terminate Upwork Payroll at any time after providing Client with notice of such termination at least 30 days in advance
of the final day Upwork Payroll will be offered (the
“Termination Date”). The Staffing Provider will have the obligation for wages and benefits accrued to Payroll Employees through and including the Termination Date, at which point such duties will cease. Additionally,
all obligations of the Staffing Provider to maintain workers’ compensation insurance coverage and/or health care coverage on behalf of Payroll Employees will cease on the Termination Date.
Client, or another third party designated by Client in Client’s sole discretion and only if it elects to designate a third party, as the case may be, will immediately assume all federal, state, and local obligations of an employer to
the Payroll Employees and will immediately assume full responsibility for providing payroll services and workers’ compensation coverage. Client will inform Payroll Employees that they are no longer covered by the Staffing Provider’s
workers’ compensation and/or health care policies.
Upon the Termination Date, Upwork will immediately be released from such obligations as are permitted by law, but Upwork and the Staffing Provider will not be relieved of any such obligations that accrued or occurred prior to the Termination
Date.
15.
GENERAL PROVISIONS
15.1
Governing Law
This Agreement and any Claim or action related thereto will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG). Clients located in the United States and its territories agree that any Claim between Client and Upwork must be resolved as described in the subsections of the User Agreement
titled “Informal
Dispute Resolution” and “Mandatory
Binding
Arbitration and Class
Action/Jury Trial Waiver.”
15.2 Severability
If any provision of
this Agreement is, for any
reason, held to be invalid
or unenforceable, the other
provisions of this Agreement
will be unimpaired, and the
invalid or unenforceable
provision will be deemed
modified so that it is valid
and enforceable to the
maximum extent permitted by
applicable law.
15.3
No
Assignment
This Agreement, and the parties’ rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract,
delegation, or transfer in violation of the foregoing will be null and void.
15.4
Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.5
Execution and Delivery;
Binding Effect
The parties will evidence execution and delivery of this Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
16.
CONTACTING US
If you have any questions, or need assistance, please contact upworkpayroll@upwork.com.
Effective September 1, 2016 to November 1, 2018
DownloadTable of Contents
If a Client signs up to use Upwork Payroll, this Upwork Payroll Agreement (this “Agreement”) applies to Client. Your use of the Site after the effective date will signify your acceptance of and agreement to this Agreement.
Please refer to the Terms
of Service for the complete terms governing your usage of the Site and Site Services. Capitalized terms not defined in this Agreement have the meanings in the Terms of Services.
This Agreement is a binding legal agreement by and between Client (
“Client” and
“you”) and Upwork Global Inc. (“Upwork” or “we”) and supersedes and replaces all prior agreements between Client and Upwork concerning Upwork Payroll.
1. UPWORK PAYROLL STAFFING PROVIDER
When a Client uses Upwork Payroll, which is described on the Site
here (
“Upwork Payroll”), a third-party staffing vendor will employ the Freelancer (the
“Staffing Provider”). Freelancer (if accepted for employment as described below) will become an employee of the Staffing Provider. The Staffing Provider will assign Freelancer to work for Client, and Client will be
responsible for supervising Freelancer. When, and only if, a Freelancer has been accepted for employment by the Staffing Provider and assigned to Client, Freelancer becomes a “Payroll
Employee” for purposes of this Agreement, but also remains a Freelancer under the Terms of Service.
Your ability to use Upwork Payroll may depend on certain factors, including, without limitation, the location of the Freelancer, the estimated length of the engagement, the wage to be paid, and the nature of the work to be performed.
A request to use Upwork Payroll may be rejected for any lawful reason.
2. INTERNATIONAL PAYROLL SERVICES
Upwork Payroll is currently only available for Freelancers who will work in the United States. Requests regarding international employment and associated fees can be addressed on a case-by-case basis by contacting
payroll@upwork.com.
3. HIRING PROCESS
As a Client, you will select a Freelancer to be employed by the Staffing Provider and assigned to work for you via Upwork Payroll. No work can begin until the engagement is active on the Upwork Site, and Client is informed that the Freelancer
has started employment and may begin work. After Freelancer’s employment begins, Client will continue to pay for each Freelancer’s services through the Site unless Client pays the Opt-Out Fee.
4. HIRING DECISIONS; LIMITATIONS ON HIRING
Client acknowledges and agrees that Client selects a Freelancer to become a Payroll Employee based upon Client’s determination that Freelancer possesses the skills, background, and education to satisfy the requirements of the assignment.
Upwork does not (a) select the Freelancer; (b) have the authority or ability to decide to engage or end the engagement of the Freelancer on behalf of Client; (c) make any independent evaluation or investigation or otherwise conduct
any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience; or (d) make any representations or warranties as to the skills, experience, background, or education of any Freelancer
or Payroll Employee. All information regarding a Payroll Employee posted on or to the Site or provided by Upwork is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork.
Upwork is not responsible for and shall have no liability for Client’s use of or reliance on any Freelancer information posted or provided by Upwork.
The Staffing Provider has the right not to hire a Freelancer for any lawful reason or no reason at all, including if the Freelancer does not meet the Staffing Provider’s standards for employment or the job is considered, in the Staffing
Provider’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. No Payroll Employee may be engaged to perform services that require the Payroll Employee to handle hazardous materials
or operate heavy machinery.
5. DISCLAIMER OF LIABILITY FOR UPWORK
Client
acknowledges and agrees that
Client and Freelancer are
solely responsible for
Freelancer Services and for
all work performed and Work
Product. Upwork provides no
express warranty of, will
have no implied warranty of,
and will have no
responsibility for, the
Staffing Provider’s
services, Freelancer
Services and/or Work
Product. Upwork expressly
disclaims all express and
implied warranties for
Freelancer Services and/or
Work Product, including,
without limitation,
warranties of
non-infringement,
merchantability, and fitness
for a particular purpose. As
between Upwork and Client,
Freelancer Services, Work
Product, and deliverables
are provided AS IS.
6. UPWORK PAYROLL SERVICES
The following are the services provided by the Staffing Provider for Payroll Employees assigned to Client: (a) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets; (b) collection,
payment, and reporting of all required taxes on such wages; (c) unemployment insurance and workers’ compensation coverage; (d) administration of legally required benefits, including health insurance, disability insurance, paid sick
leave, paid vacation, severance, notice or termination costs, retirement benefits or other welfare or pension benefits; and (e) administration of legally required leaves of absence, wage garnishments, and unemployment claims.
7. WORK ENVIRONMENT
Client acknowledges and agrees that neither Upwork nor the Staffing Provider will control the work environment in which a Payroll Employee will perform services for Client. Client will be solely responsible for ensuring that the work
environment is safe and free from harassment and discrimination as required by applicable law.
8. PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
Client will be solely responsible for protecting its property, including by implementing and enforcing any agreements, policies or procedures to protect Client’s intellectual property and confidential information.
If Client assigns a Payroll Employee any supervisory duties or gives a Payroll Employee authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those
generally made by Client’s executives, officers, or directors, Client agrees that Client and Freelancer are solely responsible for any such decisions or actions by the Payroll Employee.
Client will inform Staffing Provider through Upwork (at payroll@upwork.com) if any Payroll Employee supervises other Client employees or Payroll Employees or will handle hazardous materials or
operate heavy machinery.
If a Payroll Employee is required to possess or maintain any license or be supervised by a supervisor with a special license, Client will be responsible for verifying such license and/or providing such supervision.
Client acknowledges and agrees that Payroll Employees are not employees of Upwork and that Upwork does not supervise or control Payroll Employees. Client further acknowledges and agrees that (a) Upwork does not have the power or ability
to require a Freelancer to start or stop work; (b) Upwork does not determine or control any term or condition of Freelancer’s employment (including, but not limited to, pay, work hours, work schedules, work locations, performance evaluations,
discipline, and termination); (c) Upwork merely provides the platform for Client to assign work to Freelancer and separately facilitates the relationship between Staffing Provider and Freelancer; and (d) Upwork is not an employer or
joint employer of the Freelancer.
9. COMPLIANCE WITH LEGAL REQUIREMENTS
With respect to all Payroll Employees, Client will comply with all applicable legal requirements, including without limitation all laws prohibiting discrimination, harassment, and retaliation and all laws concerning meal and rest breaks,
expense reimbursements, leave, and safety. Client will also comply with all reasonable directives by the Staffing Provider regarding the Payroll Employee.
Client will immediately inform Staffing Provider through Upwork (at payroll@upwork.com) of (a) any complaint by or against a Payroll Employee of harassment, discrimination, retaliation or unlawful
activity; or (b) any request by a Payroll Employee for a leave of absence or disability accommodation or any awareness by Client of a potential disability or need for leave or accommodation. Client will cooperate with Staffing Provider
to complete a prompt and thorough investigation of any complaint or to provide any leave or accommodation required by law.
All Payroll Employees must be paid on an hourly, non-exempt basis unless the Staffing Provider explicitly approves an exempt determination. If the Staffing Provider approves an exempt determination, the Client is solely responsible for
ensuring the determination remains appropriate. Client agrees never to request, encourage, or require Payroll Employees to work off the clock or without reporting time to the Staffing Provider. Client will not prohibit or discourage
any Payroll Employee from taking any meal or rest break authorized by law and/or by the Staffing Provider.
10. PAYING PAYROLL EMPLOYEES
10.1 General Payment Obligations
Your payments for Upwork Payroll are governed by the terms below, as well as the Hourly
and Miscellaneous Payment
Agreement with Escrow
Instructions.
You recognize and agree that all hours recorded and submitted to the Staffing Provider by your Payroll Employees will automatically be deemed approved by you, and you authorize those hours to be paid by you. In addition, Payroll Employees
do not pay any Service Fees to Upwork. Instead, the Client pays the fees, as described below. Client also understands and agrees that Client is responsible for covering the cost of all Payroll Employee wages, even if, for example,
a Payroll Employee reports having worked more than the number of hours authorized by Client.
10.2 Client Bill Rate; Payroll Employee Pay Rate
The total amount the Client pays is the “Bill Rate”, which includes the Payroll Employee’s hourly rate or salary amount (the “Pay Rate”) as well as Upwork fees. The Client will pay Upwork’s service fees
for the use of the platform and the use of Upwork Payroll (collectively, the “Payroll
Service Fees”). The Payroll Service Fees are 23% of the Bill Rate. For example, if the Client Bill Rate is $25.00 per hour, the Payroll Employee’s Pay Rate would be $19.25. All fees are paid by the Client, and there
are no Upwork fees paid by Freelancers for engagements using Upwork Payroll.
To use Upwork Payroll, Client acknowledges and agrees that the Pay Rate on Upwork must be at least the minimum wage in the location where the Payroll Employee works.
In addition to the Bill Rate, Client acknowledges and agrees that it will be responsible for any additional costs required under applicable law. These additional costs vary based on the location of the Payroll Employee and include overtime
premiums, expense reimbursements, sick leave, vacation, severance, notice or termination costs, health insurance (including costs under the Affordable Care Act), and other similar benefits (collectively, “Additional
Costs”). For more information on these Additional Costs, please email payroll@upwork.com.
10.3 Funding and Making Payments
Client’s payments of amounts for wages, expense reimbursements, miscellaneous invoices, and bonuses are governed by the
Hourly,
Bonus and Expense Payment
Agreement with Escrow
Instructions.
The workweek begins at 00:00 midnight UTC on Monday and ends at 23:59 UTC on Sunday. The workday begins at 00:00 midnight UTC and ends at 23:59 UTC. The Bill Rate (for employees who are paid by salary) or the Bill Rate multiplied by
the number of hours worked for the previous workweek, including any overtime premium pay (for employees paid by the hour) will be charged to Client’s Payment Method on the Monday following the end of the workweek or at such other time
as communicated by Upwork or Staffing Provider in writing. Additional Costs will be charged to Client’s Payment Method after Client is provided notice of the Additional Costs. Bonuses and expense reimbursements will be charged to Client’s
Payment Method after they are approved by Client.
11. REQUIRED NOTIFICATIONS
Client can provide notices required under this Agreement to payroll@upwork.com.
Client will provide written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices
of IRS liens, and other forms of legal process affecting the payment of wages to a Payroll Employee.
Client will provide written notice within three days of any changes to the job description or work hours of a Payroll Employee, including any change from part-time to full-time status.
Client will provide written notice of the termination of a Payroll Employee’s assignment (whether initiated by Client or the Payroll Employee) by providing notice of the termination, including the Payroll Employee name, Client, and termination
date to payroll@upwork.com either (a) at least three business days before the Payroll Employee’s last day of employment; (b) immediately if employee quits without notice; or (c) such longer time
as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee resides or is legally organized. Failure to timely provide notice may result in additional obligations
to the Payroll Employee under applicable law, and Client agrees to pay any such costs.
Client also will provide Upwork notice, as provided above, if a Payroll Employee performs no work for Client for more than 10 consecutive Business Days due to any reason other than planned time off or legally required leave (which includes,
without limitation, legally required medical or family leave).
12. INDEMNIFICATION
In addition to the indemnification obligations set forth in the User
Agreement, Client agrees to (a) release, indemnify, hold harmless, protect, and defend Upwork and its respective partners, employees, directors, officers, agents, affiliates, and subsidiaries (each an
“Indemnified Party”) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee; and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys’
fees and court costs), obligations, losses, and damages (whether joint or several and including special, consequential, compensatory, or punitive damages), whether arising in contract, tort, or otherwise, related to: (i) actual or
alleged acts, errors, or omissions (including, but not limited to, breaches of contract or violations of statutes, laws, rules, or regulations) by Client, its employees (including Payroll Employee(s)), partners, agents, affiliates,
members, subsidiaries, representatives, and officers; (ii) any breach of or failure to perform under this Agreement, including, but not limited to, Client’s failure to accurately or timely report wages, hours, expenses, and other reimbursements
owed a Payroll Employee or payment of taxes for which Client is responsible; (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime; (iv) actual or alleged errors in any timesheet(s) provided
to Upwork and/or the Staffing Provider; (v) Client’s failure to pay a timesheet properly submitted for payment by Payroll Employee; (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law
related to the employment of persons, including, but not limited to, any location’s laws with respect to the payment of wages or the treatment of employees, and including, without limitation, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, and Title VII of the 1964 Civil Rights Act (collectively,
“Employment Laws and
Regulations”), or (vii) the actual or alleged failure of Upwork or the Staffing Provider to comply in any respect with the Employment Laws and Regulations based in whole or in part (A) on any instruction(s),
act(s), or failure(s) to act of Client; or (B) on any incorrect, misleading, or false information provided by Client to Upwork or the Staffing Provider. This indemnification provision will survive the expiration or other termination
of this Agreement or Client’s relationship with Upwork.
13. CHANGE OF STAFFING PROVIDER
Upwork may enter into a contract with a new provider or multiple providers to act as the employer of Payroll Employees (“New
Company”) and may end or change contracts with existing providers. If requested as a result of such changes, Client will cooperate with such New Company in every reasonable manner to ensure uninterrupted performance of
Upwork Payroll.
14. TERMINATION OF UPWORK PAYROLL
Without limiting Upwork’s ability to terminate services provided to Client under other Terms of Service, Upwork may terminate Upwork Payroll at any time after providing Client with notice of such termination at least 30 days in advance
of the final day Upwork Payroll will be offered (the
“Termination Date”). The Staffing Provider will have the obligation for wages and benefits accrued to Payroll Employees through and including the Termination Date, at which point such duties will cease. Additionally,
all obligations of the Staffing Provider to maintain workers’ compensation insurance coverage and/or health care coverage on behalf of Payroll Employees will cease on the Termination Date.
Client, or another third party designated by Client in Client’s sole discretion and only if it elects to designate a third party, as the case may be, will immediately assume all federal, state, and local obligations of an employer to
the Payroll Employees and will immediately assume full responsibility for providing payroll services and workers’ compensation coverage. Client will inform Payroll Employees that they are no longer covered by the Staffing Provider’s
workers’ compensation and/or health care policies.
Upon the Termination Date, Upwork will immediately be released from such obligations as are permitted by law, but Upwork and the Staffing Provider will not be relieved of any such obligations that accrued or occurred prior to the Termination
Date.
15. GENERAL PROVISIONS
15.1 Governing Law
This Agreement and any Claim or action related thereto will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG). Clients located in the United States and its territories agree that any Claim between Client and Upwork must be resolved as described in the subsections of the User Agreement
titled “Informal
Dispute Resolution” and “Mandatory
Binding
Arbitration and Class
Action/Jury Trial Waiver.”
15.2 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid
and enforceable to the maximum extent permitted by applicable law.
15.3 No Assignment
This Agreement, and the parties’ rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract,
delegation, or transfer in violation of the foregoing will be null and void.
15.4 Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.5 Execution and Delivery; Binding Effect
The parties will evidence execution and delivery of this Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
16. CONTACTING US
If you have any questions, or need assistance, please contact
payroll@upwork.com.
Effective April 1, 2016 to March 22, 2018
DownloadTable of Contents
If a Client signs up to use Upwork Payroll, this Upwork Payroll Agreement (this “Agreement”) applies to Client. Your use of the Site after the effective date will signify your acceptance of and agreement to this Agreement.
Please refer to the Terms
of Service for the complete terms governing your usage of the Site and Site Services. Capitalized terms not defined in this Agreement have the meanings in the Terms of Services.
This Agreement is a binding legal agreement by and between Client (
“Client” and
“you”) and Upwork Global Inc. (“Upwork” or “we”) and supersedes and replaces all prior agreements between Client and Upwork concerning Upwork Payroll.
1. UPWORK PAYROLL STAFFING PROVIDER
When a Client uses Upwork Payroll, which is described on the Site
here (
“Upwork Payroll”), a third-party staffing vendor will employ the Freelancer (the
“Staffing Provider”). Freelancer (if accepted for employment as described below) will become an employee of the Staffing Provider. The Staffing Provider will assign Freelancer to work for Client, and Client will be
responsible for supervising Freelancer. When, and only if, a Freelancer has been accepted for employment by the Staffing Provider and assigned to Client, Freelancer becomes a “Payroll
Employee” for purposes of this Agreement, but also remains a Freelancer under the Terms of Service.
Your ability to use Upwork Payroll may depend on certain factors, including, without limitation, the location of the Freelancer, the estimated length of the engagement, the wage to be paid, and the nature of the work to be performed.
A request to use Upwork Payroll may be rejected for any lawful reason.
2. INTERNATIONAL PAYROLL SERVICES
Upwork Payroll is currently only available for Freelancers who will work in the United States. Requests regarding international employment and associated fees can be addressed on a case-by-case basis by contacting
payroll@upwork.com.
3. HIRING PROCESS
As a Client, you will select a Freelancer to be employed by the Staffing Provider and assigned to work for you via Upwork Payroll. No work can begin until the engagement is active on the Upwork Site, and Client is informed that the Freelancer
has started employment and may begin work. After Freelancer’s employment begins, Client will continue to pay for each Freelancer’s services through the Site unless Client pays the Opt-Out Fee.
4. HIRING DECISIONS; LIMITATIONS ON HIRING
Client acknowledges and agrees that Client selects a Freelancer to become a Payroll Employee based upon Client’s determination that Freelancer possesses the skills, background, and education to satisfy the requirements of the assignment.
Upwork does not (a) select the Freelancer; (b) have the authority or ability to decide to engage or end the engagement of the Freelancer on behalf of Client; (c) make any independent evaluation or investigation or otherwise conduct
any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience; or (d) make any representations or warranties as to the skills, experience, background, or education of any Freelancer
or Payroll Employee. All information regarding a Payroll Employee posted on or to the Site or provided by Upwork is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork.
Upwork is not responsible for and shall have no liability for Client’s use of or reliance on any Freelancer information posted or provided by Upwork.
The Staffing Provider has the right not to hire a Freelancer for any lawful reason or no reason at all, including if the Freelancer does not meet the Staffing Provider’s standards for employment or the job is considered, in the Staffing
Provider’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. No Payroll Employee may be engaged to perform services that require the Payroll Employee to handle hazardous materials
or operate heavy machinery.
5. DISCLAIMER OF LIABILITY FOR UPWORK
Client
acknowledges and agrees that
Client and Freelancer are
solely responsible for
Freelancer Services and for
all work performed and Work
Product. Upwork provides no
express warranty of, will
have no implied warranty of,
and will have no
responsibility for, the
Staffing Provider’s
services, Freelancer
Services and/or Work
Product. Upwork expressly
disclaims all express and
implied warranties for
Freelancer Services and/or
Work Product, including,
without limitation,
warranties of
non-infringement,
merchantability, and fitness
for a particular purpose. As
between Upwork and Client,
Freelancer Services, Work
Product, and deliverables
are provided AS IS.
6. UPWORK PAYROLL SERVICES
The following are the services provided by the Staffing Provider for Payroll Employees assigned to Client: (a) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets; (b) collection,
payment, and reporting of all required taxes on such wages; (c) unemployment insurance and workers’ compensation coverage; (d) administration of legally required benefits, including health insurance, disability insurance, paid sick
leave, paid vacation, severance, notice or termination costs, retirement benefits or other welfare or pension benefits; and (e) administration of legally required leaves of absence, wage garnishments, and unemployment claims.
7. WORK ENVIRONMENT
Client acknowledges and agrees that neither Upwork nor the Staffing Provider will control the work environment in which a Payroll Employee will perform services for Client. Client will be solely responsible for ensuring that the work
environment is safe and free from harassment and discrimination as required by applicable law.
8. PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
Client will be solely responsible for protecting its property, including by implementing and enforcing any agreements, policies or procedures to protect Client’s intellectual property and confidential information.
If Client assigns a Payroll Employee any supervisory duties or gives a Payroll Employee authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those
generally made by Client’s executives, officers, or directors, Client agrees that Client and Freelancer are solely responsible for any such decisions or actions by the Payroll Employee.
Client will inform Staffing Provider through Upwork (at payroll@upwork.com) if any Payroll Employee supervises other Client employees or Payroll Employees or will handle hazardous materials or
operate heavy machinery.
If a Payroll Employee is required to possess or maintain any license or be supervised by a supervisor with a special license, Client will be responsible for verifying such license and/or providing such supervision.
Client acknowledges and agrees that Payroll Employees are not employees of Upwork and that Upwork does not supervise or control Payroll Employees. Client further acknowledges and agrees that (a) Upwork does not have the power or ability
to require a Freelancer to start or stop work; (b) Upwork does not determine or control any term or condition of Freelancer’s employment (including, but not limited to, pay, work hours, work schedules, work locations, performance evaluations,
discipline, and termination); (c) Upwork merely provides the platform for Client to assign work to Freelancer and separately facilitates the relationship between Staffing Provider and Freelancer; and (d) Upwork is not an employer or
joint employer of the Freelancer.
9. COMPLIANCE WITH LEGAL REQUIREMENTS
With respect to all Payroll Employees, Client will comply with all applicable legal requirements, including without limitation all laws prohibiting discrimination, harassment, and retaliation and all laws concerning meal and rest breaks,
expense reimbursements, leave, and safety. Client will also comply with all reasonable directives by the Staffing Provider regarding the Payroll Employee.
Client will immediately inform Staffing Provider through Upwork (at payroll@upwork.com) of (a) any complaint by or against a Payroll Employee of harassment, discrimination, retaliation or unlawful
activity; or (b) any request by a Payroll Employee for a leave of absence or disability accommodation or any awareness by Client of a potential disability or need for leave or accommodation. Client will cooperate with Staffing Provider
to complete a prompt and thorough investigation of any complaint or to provide any leave or accommodation required by law.
All Payroll Employees must be paid on an hourly, non-exempt basis unless the Staffing Provider explicitly approves an exempt determination. If the Staffing Provider approves an exempt determination, the Client is solely responsible for
ensuring the determination remains appropriate. Client agrees never to request, encourage, or require Payroll Employees to work off the clock or without reporting time to the Staffing Provider. Client will not prohibit or discourage
any Payroll Employee from taking any meal or rest break authorized by law and/or by the Staffing Provider.
10. PAYING PAYROLL EMPLOYEES
10.1 General Payment Obligations
Your payments for Upwork Payroll are governed by the terms below, as well as the Hourly
and Miscellaneous Payment
Agreement with Escrow
Instructions.
You recognize and agree that all hours recorded and submitted to the Staffing Provider by your Payroll Employees will automatically be deemed approved by you, and you authorize those hours to be paid by you. In addition, Payroll Employees
do not pay any Service Fees to Upwork. Instead, the Client pays the fees, as described below. Client also understands and agrees that Client is responsible for covering the cost of all Payroll Employee wages, even if, for example,
a Payroll Employee reports having worked more than the number of hours authorized by Client.
10.2 Client Bill Rate; Payroll Employee Pay Rate
The total amount the Client pays is the “Bill Rate”, which includes the Payroll Employee’s hourly rate or salary amount (the “Pay Rate”) as well as Upwork fees. The Client will pay Upwork’s service fees
for the use of the platform and the use of Upwork Payroll (collectively, the “Payroll
Service Fees”). The Payroll Service Fees are 21% of the Bill Rate. For example, if the Client Bill Rate is $25.00 per hour, the Payroll Employee’s Pay Rate would be $19.75. All fees are paid by the Client, and there are no
Upwork fees paid by Freelancers for engagements using Upwork Payroll.
To use Upwork Payroll, Client acknowledges and agrees that the Pay Rate on Upwork must be at least the minimum wage in the location where the Payroll Employee works.
In addition to the Bill Rate, Client acknowledges and agrees that it will be responsible for any additional costs required under applicable law. These additional costs vary based on the location of the Payroll Employee and include overtime
premiums, expense reimbursements, sick leave, vacation, severance, notice or termination costs, health insurance (including costs under the Affordable Care Act), and other similar benefits (collectively, “Additional
Costs”). For more information on these Additional Costs, please email payroll@upwork.com.
10.3 Funding and Making Payments
Client’s payments of amounts for wages, expense reimbursements, miscellaneous invoices, and bonuses are governed by the
Hourly,
Bonus and Expense Payment
Agreement with Escrow
Instructions.
The workweek begins at 00:00 midnight UTC on Monday and ends at 23:59 UTC on Sunday. The workday begins at 00:00 midnight UTC and ends at 23:59 UTC. The Bill Rate (for employees who are paid by salary) or the Bill Rate multiplied by
the number of hours worked for the previous workweek, including any overtime premium pay (for employees paid by the hour) will be charged to Client’s Payment Method on the Monday following the end of the workweek or at such other time
as communicated by Upwork or Staffing Provider in writing. Additional Costs will be charged to Client’s Payment Method after Client is provided notice of the Additional Costs. Bonuses and expense reimbursements will be charged to Client’s
Payment Method after they are approved by Client.
11. REQUIRED NOTIFICATIONS
Client can provide notices required under this Agreement to payroll@upwork.com.
Client will provide written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices
of IRS liens, and other forms of legal process affecting the payment of wages to a Payroll Employee.
Client will provide written notice within three days of any changes to the job description or work hours of a Payroll Employee, including any change from part-time to full-time status.
Client will provide written notice of the termination of a Payroll Employee’s assignment (whether initiated by Client or the Payroll Employee) by providing notice of the termination, including the Payroll Employee name, Client, and termination
date to payroll@upwork.com either (a) at least three business days before the Payroll Employee’s last day of employment; (b) immediately if employee quits without notice; or (c) such longer time
as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee resides or is legally organized. Failure to timely provide notice may result in additional obligations
to the Payroll Employee under applicable law, and Client agrees to pay any such costs.
Client also will provide Upwork notice, as provided above, if a Payroll Employee performs no work for Client for more than 10 consecutive Business Days due to any reason other than planned time off or legally required leave (which includes,
without limitation, legally required medical or family leave).
12. INDEMNIFICATION
In addition to the indemnification obligations set forth in the User
Agreement, Client agrees to (a) release, indemnify, hold harmless, protect, and defend Upwork and its respective partners, employees, directors, officers, agents, affiliates, and subsidiaries (each an
“Indemnified Party”) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee; and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys’
fees and court costs), obligations, losses, and damages (whether joint or several and including special, consequential, compensatory, or punitive damages), whether arising in contract, tort, or otherwise, related to: (i) actual or
alleged acts, errors, or omissions (including, but not limited to, breaches of contract or violations of statutes, laws, rules, or regulations) by Client, its employees (including Payroll Employee(s)), partners, agents, affiliates,
members, subsidiaries, representatives, and officers; (ii) any breach of or failure to perform under this Agreement, including, but not limited to, Client’s failure to accurately or timely report wages, hours, expenses, and other reimbursements
owed a Payroll Employee or payment of taxes for which Client is responsible; (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime; (iv) actual or alleged errors in any timesheet(s) provided
to Upwork and/or the Staffing Provider; (v) Client’s failure to pay a timesheet properly submitted for payment by Payroll Employee; (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law
related to the employment of persons, including, but not limited to, any location’s laws with respect to the payment of wages or the treatment of employees, and including, without limitation, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, and Title VII of the 1964 Civil Rights Act (collectively,
“Employment Laws and
Regulations”), or (vii) the actual or alleged failure of Upwork or the Staffing Provider to comply in any respect with the Employment Laws and Regulations based in whole or in part (A) on any instruction(s),
act(s), or failure(s) to act of Client; or (B) on any incorrect, misleading, or false information provided by Client to Upwork or the Staffing Provider. This indemnification provision will survive the expiration or other termination
of this Agreement or Client’s relationship with Upwork.
13. CHANGE OF STAFFING PROVIDER
A new third-party company may be designated to act as the employer of Payroll Employees (“New
Company”) at any time in Upwork’s sole discretion. Upon such designation, or at any other time as directed by Upwork, Client will cooperate with such New Company in every reasonable manner to ensure uninterrupted performance
of Upwork Payroll.
14. TERMINATION OF UPWORK PAYROLL
Without limiting Upwork’s ability to terminate services provided to Client under other Terms of Service, Upwork may terminate Upwork Payroll at any time after providing Client with notice of such termination at least 30 days in advance
of the final day Upwork Payroll will be offered (the
“Termination Date”). The Staffing Provider will have the obligation for wages and benefits accrued to Payroll Employees through and including the Termination Date, at which point such duties will cease. Additionally,
all obligations of the Staffing Provider to maintain workers’ compensation insurance coverage and/or health care coverage on behalf of Payroll Employees will cease on the Termination Date.
Client, or another third party designated by Client in Client’s sole discretion and only if it elects to designate a third party, as the case may be, will immediately assume all federal, state, and local obligations of an employer to
the Payroll Employees and will immediately assume full responsibility for providing payroll services and workers’ compensation coverage. Client will inform Payroll Employees that they are no longer covered by the Staffing Provider’s
workers’ compensation and/or health care policies.
Upon the Termination Date, Upwork will immediately be released from such obligations as are permitted by law, but Upwork and the Staffing Provider will not be relieved of any such obligations that accrued or occurred prior to the Termination
Date.
15. GENERAL PROVISIONS
15.1 Governing Law
This Agreement and any Claim or action related thereto will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG). Clients located in the United States and its territories agree that any Claim between Client and Upwork must be resolved as described in the subsections of the User Agreement
titled “Informal
Dispute Resolution” and “Mandatory
Binding
Arbitration and Class
Action/Jury Trial Waiver.”
15.2 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid
and enforceable to the maximum extent permitted by applicable law.
15.3 No Assignment
This Agreement, and the parties’ rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract,
delegation, or transfer in violation of the foregoing will be null and void.
15.4 Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.5 Execution and Delivery; Binding Effect
The parties will evidence execution and delivery of this Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
16. CONTACTING US
If you have any questions, or need assistance, please contact
payroll@upwork.com.
Effective March 16, 2016 to March 22, 2018
DownloadTable of Contents
If a Client signs up to use Upwork Payroll, this Upwork Payroll Agreement (this “Agreement”) applies to Client. Your use of the Site after the effective date will signify your acceptance of and agreement to this Agreement.
Please refer to the Terms
of Service for the complete terms governing your usage of the Site and Site Services. Capitalized terms not defined in this Agreement have the meanings in the Terms of Services.
This Agreement is a binding legal agreement by and between Client (
“Client” and
“you”) and Upwork Global Inc. (“Upwork” or “we”) and supersedes and replaces all prior agreements between Client and Upwork concerning Upwork Payroll.
1. UPWORK PAYROLL STAFFING PROVIDER
When a Client uses Upwork Payroll, which is described on the Site
here (
“Upwork Payroll”), a third-party staffing vendor will employ the Freelancer (the
“Staffing Provider”). Freelancer (if accepted for employment as described below) will become an employee of the Staffing Provider. The Staffing Provider will assign Freelancer to work for Client, and Client will be
responsible for supervising Freelancer. When, and only if, a Freelancer has been accepted for employment by the Staffing Provider and assigned to Client, Freelancer becomes a “Payroll
Employee” for purposes of this Agreement, but also remains a Freelancer under the Terms of Service.
Your ability to use Upwork Payroll may depend on certain factors, including, without limitation, the location of the Freelancer, the estimated length of the engagement, the wage to be paid, and the nature of the work to be performed.
A request to use Upwork Payroll may be rejected for any lawful reason.
2. INTERNATIONAL PAYROLL SERVICES
Upwork Payroll is currently only available for Freelancers who will work in the United States or Canada.Requests regarding international employment can be addressed on a case-by-case basis by contacting payroll@upwork.com.
3. HIRING PROCESS
As a Client, you will select a Freelancer to be employed by the Staffing Provider and assigned to work for you via Upwork Payroll. No work can begin until the engagement is active on the Upwork Site, and Client is informed that the Freelancer
has started employment and may begin work. After Freelancer’s employment begins, Client will continue to pay for Freelancer’s services through the Site unless Client pays the Opt-Out Fee.
4. HIRING DECISIONS; LIMITATIONS ON HIRING
Client acknowledges and agrees that Client selects a Freelancer to become a Payroll Employee based upon Client’s determination that Freelancer possesses the skills, background, and education to satisfy the requirements of the assignment.
Upwork does not (a) select the Freelancer; (b) have the authority or ability to decide to engage the Freelancer on behalf of Client; (c) make any independent evaluation or investigation or otherwise conduct any due diligence regarding
Freelancers, their resumes, qualifications, skills, background, or prior experience; or (d) make any representations or warranties as to the skills, experience, background, or education of any Freelancer or Payroll Employee. All information
regarding a Payroll Employee posted on or to the Site or provided by Upwork is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and
shall have no liability for Client’s use of or reliance on any Freelancer Information posted or provided by Upwork.
The Staffing Provider has the right not to hire a Freelancer for any lawful reason or no reason at all, including if the Freelancer does not meet the Staffing Provider’s standards for employment or the job is considered, in the Staffing
Provider’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. No Payroll Employee may be engaged to perform services that require the Payroll Employee to handle hazardous materials
or operate heavy machinery.
5. DISCLAIMER OF LIABILITY FOR UPWORK
Client
acknowledges and agrees that
Client and Freelancer are
solely responsible for
Freelancer Services and for
all work performed and Work
Product. Upwork provides no
express warranty of, will
have no implied warranty of,
and will have no
responsibility for, the
Staffing Provider’s
services, Freelancer
Services and/or Work
Product. Upwork expressly
disclaims all express and
implied warranties for
Freelancer Services and/or
Work Product, including,
without limitation,
warranties of
non-infringement,
merchantability, and fitness
for a particular purpose. As
between Upwork and Client,
Freelancer Services, Work
Product, and deliverables
are provided AS IS.
6. UPWORK PAYROLL SERVICES
The following are the services provided by the Staffing Provider for Payroll Employees assigned to Client: (a) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets; (b) collection,
payment, and reporting of all required taxes on such wages; (c) unemployment insurance and workers’ compensation coverage; (d) administration of legally required benefits, including health insurance, disability insurance, paid sick
leave, paid vacation, severance, notice or termination costs, retirement benefits or other welfare or pension benefits; and (e) administration of legally required leaves of absence, wage garnishments, and unemployment claims.
7. WORK ENVIRONMENT
Client acknowledges and agrees that neither Upwork nor the Staffing Provider will control the work environment in which a Payroll Employee will perform services for Client. Client will be solely responsible for ensuring that the work
environment is safe and free from harassment and discrimination as required by applicable law.
8. PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
Client will be solely responsible for protecting its property, including by implementing and enforcing any agreements, policies or procedures to protect Client’s intellectual property and confidential information.
If Client assigns a Payroll Employee any supervisory duties or gives a Payroll Employee authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those
generally made by Client’s executives, officers, or directors, Client agrees that Client and Freelancer are solely responsible for any such decisions or actions by the Payroll Employee.
Client will inform Staffing Provider through Upwork (at payroll@upwork.com) if any Payroll Employee supervises other Client employees or Payroll Employees or will handle hazardous materials or
operate heavy machinery.
If a Payroll Employee is required to possess or maintain any license or be supervised by a supervisor with a special license, Client will be responsible for verifying such license and/or providing such supervision.
Client acknowledges and agrees that Payroll Employees are not employees of Upwork and that Upwork does not supervise or control Payroll Employees. Client further acknowledges and agrees that (a) Upwork does not have the power or ability
to require a Freelancer to start or stop work; (b) Upwork does not determine or control any term or condition of Freelancer’s employment (including, but not limited to, pay, work hours, work schedules, work locations, performance evaluations,
discipline, and termination); (c) Upwork merely provides the platform for Client to assign work to Freelancer and separately facilitates the relationship between Staffing Provider and Freelancer; and (d) Upwork is not an employer or
joint employer of the Freelancer.
9. COMPLIANCE WITH LEGAL REQUIREMENTS
With respect to all Payroll Employees, Client will comply with all applicable legal requirements, including without limitation all laws prohibiting discrimination, harassment, and retaliation and all laws concerning meal and rest breaks,
expense reimbursements, leave, and safety. Client will also comply with all reasonable directives by the Staffing Provider regarding the Payroll Employee.
Client will immediately inform Staffing Provider through Upwork (at payroll@upwork.com) of (a) any complaint by or against a Payroll Employee of harassment, discrimination, retaliation or unlawful
activity; or (b) any request by a Payroll Employee for a leave of absence or disability accommodation or any awareness by Client of a potential disability or need for leave or accommodation. Client will cooperate with Staffing Provider
to complete a prompt and thorough investigation of any complaint or to provide any leave or accommodation required by law.
All Payroll Employees must be paid on an hourly, non-exempt basis unless the Staffing Provider explicitly approves an exempt determination. If the Staffing Provider approves an exempt determination, the Client is solely responsible for
ensuring the determination remains appropriate. Client agrees never to request, encourage, or require Payroll Employees to work off the clock or without reporting the time to the Staffing Provider. Client will not prohibit or discourage
any Payroll Employee from taking any meal or rest break authorized by law and/or by the Staffing Provider.
10. PAYING PAYROLL EMPLOYEES
10.1 General Payment Obligations
Your payments for Upwork Payroll are governed by the terms below, as well as the Hourly
and Miscellaneous Payment
Agreement with Escrow
Instructions.
You recognize and agree that all hours recorded and submitted to the Staffing Provider by your Payroll Employees will automatically be deemed approved by you, and you authorize those hours to be paid by you. In addition, Payroll Employees
do not pay any Service Fees to Upwork.Instead, the Client pays the fees, as described below. Client also understands and agrees that Client is responsible for covering the cost of all Payroll Employee wages, even if a Payroll Employee
reports having worked more than the number of hours authorized by Client.
10.2 Client Bill Rate; Payroll Employee Pay Rate
The total amount the Client pays is the “Bill Rate”, which includes the Payroll Employee’s hourly rate or salary amount (the “Pay Rate”) as well as Upwork fees. The client pays Upwork’s normal 10% Service
Fee for using the Site. In addition, Client will pay employer taxes, Upwork’s fees for Upwork Payroll, and the Staffing Provider’s fees (collectively, the “Payroll
Service Fees”). The Payroll Service Fees are 11% of the Bill Rate. As an example, if the Client’s Bill Rate is $25.00 per hour, then the Service Fee would be $2.50 (10% of $25.00) per hour, the Payroll Service Fees would
be $2.75 (10% of $25.00) per hour, and the Payroll Employee’s Pay Rate would be $19.75 per hour.
To use Upwork Payroll, Client acknowledges and agrees that the Pay Rate on Upwork must be at least the minimum wage in the location where the Payroll Employee works.
In addition to the Bill Rate, Client acknowledges and agrees that it will be responsible for any additional costs required under applicable law. These additional costs vary based on the location of the Payroll Employee and include overtime
premiums, expense reimbursements, sick leave, vacation, severance, notice or termination costs, health insurance (including costs under the Affordable Care Act), and other similar benefits (collectively, “Additional
Costs”). In addition, the Payroll Service Fee may be increased before employment begins for international Upwork Payroll Services. For more information on these Additional Costs in the location of the Freelancer, please
email payroll@upwork.com.
10.3 Funding and Making Payments
Client’s payments of amounts for wages, expense reimbursements, miscellaneous invoices, and bonuses are governed by the
Hourly,
Bonus and Expense Payment
Agreement with Escrow
Instructions.
The workweek begins at 00:00 midnight UTC on Monday and ends at 23:59 UTC on Sunday. The workday begins at 00:00 midnight UTC and ends at 23:59 UTC. The Bill Rate (for employees who are paid by salary) or the Bill Rate multiplied by
the number of hours worked for the previous workweek, including any overtime premium pay (for employees paid by the hour) will be charged to Client’s Payment Method on the Monday following the end of the workweek or at such later time
as communicated by Upwork or Staffing Provider. Additional Costs will be charged to Client’s Payment Method after Client is provided notice of the Additional Costs. Bonuses and expense reimbursements will be charged to Client’s Payment
Method after they are approved by Client.
11. REQUIRED NOTIFICATIONS
Client can provide notices required under this Agreement to payroll@upwork.com.
Client will provide written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices
of IRS liens, and other forms of legal process affecting the payment of wages to a Payroll Employee.
Client will provide written notice within three days of any changes to the job description or work hours of a Payroll Employee, including any change from part-time to full-time status.
Client will provide written notice of the termination of a Payroll Employee’s assignment (whether initiated by Client or the Payroll Employee) by providing notice of the termination, including the Payroll Employee name, Client, and termination
date to payroll@upwork.com either (a) at least three business days before the Payroll Employee’s last day of employment; (b) immediately if employee quits without notice; or (c) such longer time
as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee resides or is legally organized. Failure to timely provide notice may result in additional obligations
to the Payroll Employee under applicable law, and Client agrees to pay any such costs.
Client also will provide Upwork notice, as provided above, if a Payroll Employee performs no work for Client for more than 10 consecutive Business Days due to any reason other than planned time off or legally required leave (which includes,
without limitation, legally required medical or family leave).
12. INDEMNIFICATION
In addition to the indemnification obligations set forth in the User
Agreement, Client agrees to (a) release, indemnify, hold harmless, protect, and defend Upwork and its respective partners, employees, directors, officers, agents, affiliates, and subsidiaries (each an
“Indemnified Party”) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee; and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys’
fees and court costs), obligations, losses, and damages (whether joint or several and including special, consequential, compensatory, or punitive damages), whether arising in contract, tort, or otherwise, related to: (i) actual or
alleged acts, errors, or omissions (including, but not limited to, breaches of contract or violations of statutes, laws, rules, or regulations) by Client, its employees (including Payroll Employee(s)), partners, agents, affiliates,
members, subsidiaries, representatives, and officers; (ii) any breach of or failure to perform under this Agreement, including, but not limited to, Client’s failure to accurately or timely report wages, hours, expenses, and other reimbursements
owed a Payroll Employee or payment of taxes for which Client is responsible; (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime; (iv) actual or alleged errors in any timesheet(s) provided
to Upwork and/or the Staffing Provider; (v) Client’s failure to pay a timesheet properly submitted for payment by Payroll Employee; (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law
related to the employment of persons, including, but not limited to, any location’s laws with respect to the payment of wages or the treatment of employees, and including, without limitation, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, and Title VII of the 1964 Civil Rights Act (collectively,
“Employment Laws and
Regulations”), or (vii) the actual or alleged failure of Upwork or the Staffing Provider to comply in any respect with the Employment Laws and Regulations based in whole or in part (A) on any instruction(s),
act(s), or failure(s) to act of Client; or (B) on any incorrect, misleading, or false information provided by Client to Upwork or the Staffing Provider. This indemnification provision will survive the expiration or other termination
of this Agreement or Client’s relationship with Upwork.
13. CHANGE OF STAFFING PROVIDER
A new third-party company may be designated to act as the employer of Payroll Employees (“New
Company”), at any time in Upwork’s sole discretion. Upon such designation, or at any other time as directed by Upwork, Client will cooperate with such New Company in every reasonable manner to ensure uninterrupted performance
of Upwork Payroll.
14. TERMINATION OF UPWORK PAYROLL
Without limiting Upwork’s ability to terminate services provided to Client under other Terms of Service, Upwork may terminate Upwork Payroll at any time after providing Client with notice of such termination at least 30 days in advance
of the final day Upwork Payroll will be offered (the
“Termination Date”). The Staffing Provider will have the obligation for wages and benefits accrued to Payroll Employees through and including the Termination Date, at which point such duties will cease.Additionally,
all obligations of the Staffing Provider to maintain workers’ compensation insurance coverage and/or health care coverage on behalf of Payroll Employees will cease on the Termination Date.
Client, or another third party designated by Client in Client’s sole discretion and only if it elects to designate a third party, as the case may be, will immediately assume all federal, state, and local obligations of an employer to
the Payroll Employees and will immediately assume full responsibility for providing payroll services and workers’ compensation coverage. Client will inform Payroll Employees that they are no longer covered by the Staffing Provider’s
workers’ compensation and/or health care policies.
Upon the Termination Date, Upwork will immediately be released from such obligations as are permitted by law, but Upwork and the Staffing Provider will not be relieved of any such obligations that accrued or occurred prior to the Termination
Date.
15. GENERAL PROVISIONS
15.1 Governing Law
This Agreement and any Claim or action related thereto will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG). You agree that any Claim between you and Upwork must be resolved as described in the subsections of the User Agreement titled
“Informal Dispute
Resolution” and
“Mandatory Binding
Arbitration and Class
Action/Jury Trial Waiver.”
15.2 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid
and enforceable to the maximum extent permitted by applicable law.
15.3 No Assignment
This Agreement, and the parties’ rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract,
delegation, or transfer in violation of the foregoing will be null and void.
15.4 Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.5 Execution and Delivery; Binding Effect
The parties will evidence execution and delivery of this Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
16. CONTACTING US
If you have any questions, or need assistance, please contact
payroll@upwork.com.
Effective September 6, 2015 to March 22, 2018
DownloadTable of Contents
If a Client signs up to use Upwork Payroll, this Upwork Payroll Agreement (this “Agreement”) applies to Client. Your use of the Site after the effective date will signify your acceptance of and agreement to this Agreement.
Please refer to the Terms
of Service for the complete terms governing your usage of the Site and Site Services. Capitalized terms not defined in this Agreement have the meanings in the Terms of Services.
This Agreement is a binding legal agreement by and between Client (
“Client” and
“you”) and Upwork Global Inc. (“Upwork” or “we”) and supersedes and replaces all prior agreements between Client and Upwork concerning Upwork Payroll.
1. UPWORK PAYROLL STAFFING PROVIDER
When a Client uses Upwork Payroll, which is described on the Site
here (
“Upwork Payroll”), a third-party staffing vendor will employ the Freelancer (the
“Staffing Provider”). Freelancer (if accepted for employment as described below) will become an employee of the Staffing Provider. The Staffing Provider will assign Freelancer to work for Client, and Client will be
responsible for supervising Freelancer. When, and only if, a Freelancer has been accepted for employment by the Staffing Provider and assigned to Client, Freelancer becomes a “Payroll
Employee” for purposes of this Agreement, but also remains a Freelancer under the Terms of Service.
Your ability to use Upwork Payroll may depend on certain factors, including, without limitation, the location of the Freelancer, the estimated length of the engagement, the wage to be paid, and the nature of the work to be performed.
A request to use Upwork Payroll may be rejected for any lawful reason.
2. INTERNATIONAL PAYROLL SERVICES
Upwork Payroll is currently only available for Freelancers who will work in the United States or Canada.Requests regarding international employment can be addressed on a case-by-case basis by contacting payroll@upwork.com.
3. HIRING PROCESS
As a Client, you will select a Freelancer to be employed by the Staffing Provider and assigned to work for you via Upwork Payroll. No work can begin until the engagement is active on the Upwork Site, and Client is informed that the Freelancer
has started employment and may begin work. After Freelancer’s employment begins, Client will continue to pay for Freelancer’s services through the Site unless Client pays the Opt-Out Fee.
4. HIRING DECISIONS; LIMITATIONS ON HIRING
Client acknowledges and agrees that Client selects a Freelancer to become a Payroll Employee based upon Client’s determination that Freelancer possesses the skills, background, and education to satisfy the requirements of the assignment.
Upwork does not (a) select the Freelancer; (b) have the authority or ability to decide to engage the Freelancer on behalf of Client; (c) make any independent evaluation or investigation or otherwise conduct any due diligence regarding
Freelancers, their resumes, qualifications, skills, background, or prior experience; or (d) make any representations or warranties as to the skills, experience, background, or education of any Freelancer or Payroll Employee. All information
regarding a Payroll Employee posted on or to the Site or provided by Upwork is intended to be indicative or illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and
shall have no liability for Client’s use of or reliance on any Freelancer Information posted or provided by Upwork.
The Staffing Provider has the right not to hire a Freelancer for any lawful reason or no reason at all, including if the Freelancer does not meet the Staffing Provider’s standards for employment or the job is considered, in the Staffing
Provider’s sole discretion, too hazardous or not covered by the applicable workers’ compensation insurance policy. No Payroll Employee may be engaged to perform services that require the Payroll Employee to handle hazardous materials
or operate heavy machinery.
5. DISCLAIMER OF LIABILITY FOR UPWORK
Client
acknowledges and agrees that
Client and Freelancer are
solely responsible for
Freelancer Services and for
all work performed and Work
Product. Upwork provides no
express warranty of, will
have no implied warranty of,
and will have no
responsibility for, the
Staffing Provider’s
services, Freelancer
Services and/or Work
Product. Upwork expressly
disclaims all express and
implied warranties for
Freelancer Services and/or
Work Product, including,
without limitation,
warranties of
non-infringement,
merchantability, and fitness
for a particular purpose. As
between Upwork and Client,
Freelancer Services, Work
Product, and deliverables
are provided AS IS.
6. UPWORK PAYROLL SERVICES
The following are the services provided by the Staffing Provider for Payroll Employees assigned to Client: (a) calculation and payment of wages (including any applicable overtime wages) based upon submitted timesheets; (b) collection,
payment, and reporting of all required taxes on such wages; (c) unemployment insurance and workers’ compensation coverage; (d) administration of legally required benefits, including health insurance, disability insurance, paid sick
leave, paid vacation, severance, notice or termination costs, retirement benefits or other welfare or pension benefits; and (e) administration of legally required leaves of absence, wage garnishments, and unemployment claims.
7. WORK ENVIRONMENT
Client acknowledges and agrees that neither Upwork nor the Staffing Provider will control the work environment in which a Payroll Employee will perform services for Client. Client will be solely responsible for ensuring that the work
environment is safe and free from harassment and discrimination as required by applicable law.
8. PAYROLL EMPLOYEE SUPERVISION AND LIMITATIONS ON SCOPE OF EMPLOYMENT
Client will be solely responsible for protecting its property, including by implementing and enforcing any agreements, policies or procedures to protect Client’s intellectual property and confidential information.
If Client assigns a Payroll Employee any supervisory duties or gives a Payroll Employee authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those
generally made by Client’s executives, officers, or directors, Client agrees that Client and Freelancer are solely responsible for any such decisions or actions by the Payroll Employee.
Client will inform Staffing Provider through Upwork (at payroll@upwork.com) if any Payroll Employee supervises other Client employees or Payroll Employees or will handle hazardous materials or
operate heavy machinery.
If a Payroll Employee is required to possess or maintain any license or be supervised by a supervisor with a special license, Client will be responsible for verifying such license and/or providing such supervision.
Client acknowledges and agrees that Payroll Employees are not employees of Upwork and that Upwork does not supervise or control Payroll Employees. Client further acknowledges and agrees that (a) Upwork does not have the power or ability
to require a Freelancer to start or stop work; (b) Upwork does not determine or control any term or condition of Freelancer’s employment (including, but not limited to, pay, work hours, work schedules, work locations, performance evaluations,
discipline, and termination); (c) Upwork merely provides the platform for Client to assign work to Freelancer and separately facilitates the relationship between Staffing Provider and Freelancer; and (d) Upwork is not an employer or
joint employer of the Freelancer.
9. COMPLIANCE WITH LEGAL REQUIREMENTS
With respect to all Payroll Employees, Client will comply with all applicable legal requirements, including without limitation all laws prohibiting discrimination, harassment, and retaliation and all laws concerning meal and rest breaks,
expense reimbursements, leave, and safety. Client will also comply with all reasonable directives by the Staffing Provider regarding the Payroll Employee.
Client will immediately inform Staffing Provider through Upwork (at payroll@upwork.com) of (a) any complaint by or against a Payroll Employee of harassment, discrimination, retaliation or unlawful
activity; or (b) any request by a Payroll Employee for a leave of absence or disability accommodation or any awareness by Client of a potential disability or need for leave or accommodation. Client will cooperate with Staffing Provider
to complete a prompt and thorough investigation of any complaint or to provide any leave or accommodation required by law.
All Payroll Employees must be paid on an hourly, non-exempt basis unless the Staffing Provider explicitly approves an exempt determination. If the Staffing Provider approves an exempt determination, the Client is solely responsible for
ensuring the determination remains appropriate. Client agrees never to request, encourage, or require Payroll Employees to work off the clock or without reporting the time to the Staffing Provider. Client will not prohibit or discourage
any Payroll Employee from taking any meal or rest break authorized by law and/or by the Staffing Provider.
10. PAYING PAYROLL EMPLOYEES
10.1 General Payment Obligations
Your payments for Upwork Payroll are governed by the terms below, as well as the Hourly
and Miscellaneous Payment
Agreement with Escrow
Instructions.
You recognize and agree that all hours recorded and submitted to the Staffing Provider by your Payroll Employees will automatically be deemed approved by you, and you authorize those hours to be paid by you. In addition, Payroll Employees
do not pay any Service Fees to Upwork.Instead, the Client pays the fees, as described below. Client also understands and agrees that Client is responsible for covering the cost of all Payroll Employee wages, even if a Payroll Employee
reports having worked more than the number of hours authorized by Client.
10.2 Client Bill Rate; Payroll Employee Pay Rate
The total amount the Client pays is the “Bill Rate”, which includes the Payroll Employee’s hourly rate or salary amount (the “Pay Rate”) as well as Upwork fees. The client pays Upwork’s normal 10% Service
Fee for using the Site. In addition, Client will pay employer taxes, Upwork’s fees for Upwork Payroll, and the Staffing Provider’s fees (collectively, the “Payroll
Service Fees”). The Payroll Service Fees are 10% of the Bill Rate. As an example, if the Client’s Bill Rate is $25.00 per hour, then the Service Fee would be $2.50 (10% of $25.00) per hour, the Payroll Service Fees would
be $2.50 (10% of $25.00) per hour, and the Payroll Employee’s Pay Rate would be $20.00 per hour.
To use Upwork Payroll, Client acknowledges and agrees that the Bill Rate on Upwork must be at least 25% more than the minimum wage in the location where the Payroll Employee works.
In addition to the Bill Rate, Client acknowledges and agrees that it will be responsible for any additional costs required under applicable law. These additional costs vary based on the location of the Payroll Employee and include overtime
premiums, expense reimbursements, sick leave, vacation, severance, notice or termination costs, health insurance (including costs under the Affordable Care Act), and other similar benefits (collectively, “Additional
Costs”). In addition, the Payroll Service Fee may be increased before employment begins for international Upwork Payroll Services. For more information on these Additional Costs in the location of the Freelancer, please
email payroll@upwork.com.
10.3 Funding and Making Payments
Client’s payments of amounts for wages, expense reimbursements, miscellaneous invoices, and bonuses are governed by the
Hourly,
Bonus and Expense Payment
Agreement with Escrow
Instructions.
The workweek begins at 00:00 midnight UTC on Monday and ends at 23:59 UTC on Sunday. The workday begins at 00:00 midnight UTC and ends at 23:59 UTC. The Bill Rate (for employees who are paid by salary) or the Bill Rate multiplied by
the number of hours worked for the previous workweek, including any overtime premium pay (for employees paid by the hour) will be charged to Client’s Payment Method on the Monday following the end of the workweek or at such later time
as communicated by Upwork or Staffing Provider. Additional Costs will be charged to Client’s Payment Method after Client is provided notice of the Additional Costs. Bonuses and expense reimbursements will be charged to Client’s Payment
Method after they are approved by Client.
11. REQUIRED NOTIFICATIONS
Client can provide notices required under this Agreement to payroll@upwork.com.
Client will provide written notice within 24 hours of its own receipt of any notice of a work-related accident or injury, and within three days of its receipt of any notice of any garnishment orders, involuntary deduction orders, notices
of IRS liens, and other forms of legal process affecting the payment of wages to a Payroll Employee.
Client will provide written notice within three days of any changes to the job description or work hours of a Payroll Employee, including any change from part-time to full-time status.
Client will provide written notice of the termination of a Payroll Employee’s assignment (whether initiated by Client or the Payroll Employee) by providing notice of the termination, including the Payroll Employee name, Client, and termination
date to payroll@upwork.com either (a) at least three business days before the Payroll Employee’s last day of employment; (b) immediately if employee quits without notice; or (c) such longer time
as may be required to provide the Payroll Employee with adequate notice of termination under the law where the Payroll Employee resides or is legally organized. Failure to timely provide notice may result in additional obligations
to the Payroll Employee under applicable law, and Client agrees to pay any such costs.
Client also will provide Upwork notice, as provided above, if a Payroll Employee performs no work for Client for more than 10 consecutive Business Days due to any reason other than planned time off or legally required leave (which includes,
without limitation, legally required medical or family leave).
12. INDEMNIFICATION
In addition to the indemnification obligations set forth in the User
Agreement, Client agrees to (a) release, indemnify, hold harmless, protect, and defend Upwork and its respective partners, employees, directors, officers, agents, affiliates, and subsidiaries (each an
“Indemnified Party”) from and against any and all claims by any person or entity, including a Freelancer or Payroll Employee; and (b) reimburse any Indemnified Party for any claims, expenses, costs (including attorneys’
fees and court costs), obligations, losses, and damages (whether joint or several and including special, consequential, compensatory, or punitive damages), whether arising in contract, tort, or otherwise, related to: (i) actual or
alleged acts, errors, or omissions (including, but not limited to, breaches of contract or violations of statutes, laws, rules, or regulations) by Client, its employees (including Payroll Employee(s)), partners, agents, affiliates,
members, subsidiaries, representatives, and officers; (ii) any breach of or failure to perform under this Agreement, including, but not limited to, Client’s failure to accurately or timely report wages, hours, expenses, and other reimbursements
owed a Payroll Employee or payment of taxes for which Client is responsible; (iii) any alleged failure to properly classify one or more Payroll Employees as exempt from overtime; (iv) actual or alleged errors in any timesheet(s) provided
to Upwork and/or the Staffing Provider; (v) Client’s failure to pay a timesheet properly submitted for payment by Payroll Employee; (vi) the actual or alleged failure of Client to comply in any respect with any workplace law or law
related to the employment of persons, including, but not limited to, any location’s laws with respect to the payment of wages or the treatment of employees, and including, without limitation, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Family and Medical Leave Act of 1993, and Title VII of the 1964 Civil Rights Act (collectively,
“Employment Laws and
Regulations”), or (vii) the actual or alleged failure of Upwork or the Staffing Provider to comply in any respect with the Employment Laws and Regulations based in whole or in part (A) on any instruction(s),
act(s), or failure(s) to act of Client; or (B) on any incorrect, misleading, or false information provided by Client to Upwork or the Staffing Provider. This indemnification provision will survive the expiration or other termination
of this Agreement or Client’s relationship with Upwork.
13. CHANGE OF STAFFING PROVIDER
A new third-party company may be designated to act as the employer of Payroll Employees (“New
Company”), at any time in Upwork’s sole discretion. Upon such designation, or at any other time as directed by Upwork, Client will cooperate with such New Company in every reasonable manner to ensure uninterrupted performance
of Upwork Payroll.
14. TERMINATION OF UPWORK PAYROLL
Without limiting Upwork’s ability to terminate services provided to Client under other Terms of Service, Upwork may terminate Upwork Payroll at any time after providing Client with notice of such termination at least 30 days in advance
of the final day Upwork Payroll will be offered (the
“Termination Date”). The Staffing Provider will have the obligation for wages and benefits accrued to Payroll Employees through and including the Termination Date, at which point such duties will cease.Additionally,
all obligations of the Staffing Provider to maintain workers’ compensation insurance coverage and/or health care coverage on behalf of Payroll Employees will cease on the Termination Date.
Client, or another third party designated by Client in Client’s sole discretion and only if it elects to designate a third party, as the case may be, will immediately assume all federal, state, and local obligations of an employer to
the Payroll Employees and will immediately assume full responsibility for providing payroll services and workers’ compensation coverage. Client will inform Payroll Employees that they are no longer covered by the Staffing Provider’s
workers’ compensation and/or health care policies.
Upon the Termination Date, Upwork will immediately be released from such obligations as are permitted by law, but Upwork and the Staffing Provider will not be relieved of any such obligations that accrued or occurred prior to the Termination
Date.
15. GENERAL PROVISIONS
15.1 Governing Law
This Agreement and any Claim or action related thereto will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention
on Contracts for the International Sale of Goods (CISG). You agree that any Claim between you and Upwork must be resolved as described in the subsections of the User Agreement titled
“Informal Dispute
Resolution” and
“Mandatory Binding
Arbitration and Class
Action/Jury Trial Waiver.”
15.2 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid
and enforceable to the maximum extent permitted by applicable law.
15.3 No Assignment
This Agreement, and the parties’ rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract,
delegation, or transfer in violation of the foregoing will be null and void.
15.4 Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.5 Execution and Delivery; Binding Effect
The parties will evidence execution and delivery of this Agreement with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
16. CONTACTING US
If you have any questions, or need assistance, please contact
payroll@upwork.com.













